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INDIAN LAW PUBLICATIONS. 



Cash Prices. Rs. a. 

Collctt*B Law of Specific Relief in India, being a Commentarv 

onActIoflb77 .. .. .. .. .. 1907 12 

CoraprehonBive (The) Criminal Digest— 1B62- 1903, by C. H., Vakil. 8 
Supplement from 1 890 to 1G08 . . . . . . 4 

Criminal Procedure Code, Act Y of 1898, with Notes shoM^ing the 

clirtngeh effected in tluj Law, also an Introduction and Index '. . 2 

Criminal Court Manual, with Notes by Yencataramanan. 190? 8 
Cunningham's Indian Evidence Act, No. I of 1872, as amended and 

modilied, lltli edition, edited by Sir H. H. Shephurd . . 1908 12 

Cunningham ft Shephard's Indian Contract Act . . . 1908 18 

Currie's Indian Law Exan^ination Manual, Sth edition . . 1907 5 

Dawes' Stamp Manual, Act II of 1899 . . 5 

Desikachary's The Law relating to Guardians and Wards in 

British India .. .. .. .. .. 1001 1 

Desai's Index of Cases. 1.S11-1C07 with supplement . . 1908 9 

Desai's Handbook of Criminal Cases, tv^^^^^imReprttit, 1900-1906* 

in 2 vols. .. .. .. .. .. 1907 14 




8 


8 








8 



Desai's Indian Stamp Act 
Desafs Indian Court Fees Act 
Desai's Indian Easements 
Desai's Transfer of Property Act 



.. 1906 

.. 1909 

Nfio Edition in the Press. 

.. 1908 



4 



Dictionary of Law Terms, with a Glossary of Indian, Judicial, 

and Revenue Terms, 6th edition, 1896. New issue in pre^'araiion. 
Donogh*s Indian Stamp Law . . 1005 

Elberling's Treatise on Inheritance, Gift, Will, Sale, and Mortgage, 

with Introduction, second repriiii 

Field's Law of Evidence in British India, revised by Pugh and 

Stokes.. .. .. .. .. .. 1907 12 

French's Rent Recovery Act, Madras, No. YIII of 1865, with Pre- 
face, Notes, and Index, 4th edition, revised and enlarged 1901 1 8 

Qoodeve's (L. A.) Modern Law of Personal Property . . 1004 13 8 

Qoodeve^s (L. A.) Modern Law of Real Property, wiih Appendix, 



3 



1906 
1891 



15 12 
2 



10 
10 



30 



8 



Goudsmit's Pandects, A Treatise on the Roman Law 
Gour's Transfer of Property in British India, 3rd edition-- 

Vol. I. — General Principles and Sales . . 

V«'l. II .. .. .. .. Jnlij, 1009. 

Vol.111. .. .. .. .. In the Press. 

— The Penal Law of India, 1909, 2 vols .. 
Griffith's Indian Evidence Acts, I and XYIII of 1872, with an In- 
troduction 

Griffith's (W.) Code of Criminal Procedure, Act X of 1882 as 

"Modified by the Government up to February 1699, with Notes thereon 
^^^ Appendices, 8vo . . 

Griffith's (W.) Indian Succession Act, Act X of 1865 

Griffith's (W.) Indian Trusts Act, Act II of 1882 . . 

Griffith's (W.) Specific Relief Act, Act I of 1877 

Griffith's (W.) Transfer of Property Act 1892 

Griffith's (W.) Indian Limitation Act, XY of 1877 

* Cattomera who have not had previous dealing* with us, should remit 
value or part value of goods icUh order. 



1895 



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ham A Go., Law Publishers, Madras and 



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A TREATISE 



ON 



HINDU LAW AND USAGE. 



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A TREATISE cf 



ON 



HINDU LAW AND USAGE. 



BY 

JOHN D. MAYNE, 

OF THE INNER TEMPLE, ESQ., BARRISTER- AT- LAW, 

FOBMERLy OFFICIATING ADVOCATE-(iENEHAL OF MADRAS, 

AUTHOR OP ** A TREATISE ON DAMAGES," •' THE CRIMINAL LAW OF INDIA," ETC. 



SEVENTH EDITION. 
REVISED AMD ENLARGED. 



Madras: HIGGINBOTHAM & CO. 
Bp JlppoiatMent to I). €. Cl>e 6o9ernor of iRadras. 

1906. ^{\i 

[All rights reserved.] 



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PRINTBO BY HIOOINBOTBAM k CO., MOUNT BOJO), MADRAB. 



dlO 7 I^ 



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PREFACE TO THE SEVENTH EDITION. 

Two important decisions of the Judicial Committee, which 
have already furnished material for much discussion in India, 
will be found in ^ § 663A and 674.. In other respects the large 
number of new cases, which are included in this edition, have 
been of more interest to the individual suitors than to the students 
of law. 

GrOODRBST, 

Reading, JOHN D. MAYNE. 

May 1906. 



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PREFACE TO THE SIXTH EDITION. 



The increased bulk of this volume is chiefly owing to the 
considerable amount of new material which I have found at my 
disposal. Both the Privy Council and the Indian Courts have 
been rich in decisions of unusual importance, particularly in regard 
to the law of adoption and wills. My friend Rajah Dharma Pravina 
Thumboo Chetty, of the Mysore Council of Regency, has been 
good enough to furnish me with a complete series of the reports 
of the Chief Court of Mysore. The recent works of M. Leon 
Sorg, Chief Justice of the Court of First Instance in Pondicherry, 
have for the first time supplied us with a connected view of the 
mode in which questions of Hindu Law are dealt with by French 
jurists. These are of especial value, as they are based, not merely 
upon the writings of the Hindu lawyers, but upon formal enquiry 
as to the usage at present prevailing upon each disputed point 
among the natives subject to the Pondicherry Courts. 

The investigations of the Malabar Marriage Commission have 
thrown a flood of light upon the existence of polyandry on the 
West Coast of India, and upon the character of the unions 
contracted under its influence. These are further supplemented 
by the Census Reports for 1891 of the States of Cochin and 
Travancore, and by Mr. Logan's most valuable Manual of the 
Malabar District. I have utilised these sources for the purpose 
of giving a brief, and I hope fairly accurate view of a rather 
obscure subject. I have also taken advantage of this opportunity 
to glean from the invaluable reports of the Census of India for 
1891, and from the singularly learned work by Dr. Maclean on the 
administration of Madras, many curious and interesting instances 
of local usage on matters of domestic law. The District Manuals 
of South Canara and North Arcot abound in similar information 
to which I am indebted. 



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PRBPAOB. VU 

Dr. Jolly has again placed Indian enquirers heavily in his 
debt by his new work, Recht und Sitte, itself only a segment of 
an Encyclopaedia of Indo-Aryan research, which is being edited 
by Dr. Biihler. The first chapter, in which the combined results 
of German and British research in reference to Sanskrit law books 
are focused into one view, is of immense value. 

After I had completed this edition I received, through the 
courtesy of Mr. S. Sitarama Sastri, a learned scholar of Madras, 
a proof sheet of a translation of a portion of the commentary of 
Visvarupa on Yajnavalkya, of which even Dr. Jolly only knew 
from citations that it existed, and was earlier than the Mitakshara. 
It is very curious, especially as showing the gradual development 
of heirship among women. As to daughters, he expressly states, 
what I have long suggested was probable, that only " appointed 
daughters " took by inheritance after a widow : while he seems 
to limit the term widow, as meaning a pregnant widow, who 
would apparently take only as guardian for her possible son. 
The discovery at so late a period of a copy of this work is very 
remarkable. 

The delay in the appearance of this edition which has been so 
long promised, arises from my having, in consequence of the large 
amount of new matter, requested my publishers to allow all the 
sheets to pass through my own hands. The cross-references in 
the body of the work, and in the contents, are still to the para- 
graphs, but those in the index and table of cases are, for the 
first time, to the pages — a change which, I hope, will be found a 
convenience to the reader. 

Inner Temple, JOHN D. MAYNE. 

August 1900. 



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PREFACE TO THE THIRD EDITION- 



»«•«• 



Since the publication of the last edition of this work, many new 
materials for the study of Hindu Law have been placed within 
the reach of those, who, like myself, are unable to examine the 
authorities in their original Sanskrit. Professor Max Mailer's 
Series of the Sacred Books of the East has given us translations 
of the entire texts of Apastamba, Gautama, and Vishnu, by 
Dr. Biihler and Dr. Jolly. Mr. Narayan Mandlik has supplied 
us with a translation of the whole of Yajnavalkya, and a new 
rendering of the Mayukha ; while the Sarasvati Vilasa and the 
Viramitrodaya have been rendered accessible by the labours of 
Mr. Foulkes and of Golapchandra Sarkar. 

Judging from an examination of these works, I doubt whether 
we need expect to receive much more light upon the existing 
Hindu Law from the works of the purely legal writers. They 
seem to me merely to reproduce with slavish fidelity the same 
texts of the ancient writers, and then to criticise them, as if they 
were algebraic formulas, without any attempt to show what rela- 
tion, if any, they have to the actual facts of life. When, for 
instance, so modern a work as the Viramitrodaya gravely discusses 
marriages between persons of different castes, or the twelve species 
of sons, it is impossible to imagine that the author is talking of 
anything which really existed in his time. Yet he dilates upon 
ail these distinctions with as much apparent faith in their value, 
as would be exhibited by an English lawyer in expounding the 
peculiarities of a bill of exchange. From the extracts given by 
Mr. Narayan Mandlik, I imagine that the modern writers of 
Western India are more willing to recognise realities than those 
of Bengal and Benares. Probably, much that is useful and 
interesting might be found (amid an infinity of rabbish) in the 
works on ceremonial law. But what we really want is that well- 



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i PREFACE. IX 

informed natives of India should take a law book in their hands, 
and tell us frankly, under each head, how much of the written 
text is actually recognised and practised as the rule of every-day 
life. The great value of Mr. Narayan Mandlik's work consists 
in the extent to which he has adopted this course. His forth- 
coming work will be looked for with the greatest interest by 
every student of Hindu Law. 

I feel a natural timidity in entering upon the region of volcanic 
controversy which has sprung up around the works of Mr. J. H. 
Nelson. It seems a pity that amid so much with which everyone 
must agree, there should be so much more with which no one can 
agree. When he denies that Manu, Yajnavalkya, and the Mitak- 
shara form the recognized guides of Dravidian, or even of Sudra 
life, one is wilimg to accept the statement. But when he goes on 
to assert that Manu, Yajnavalkya, and the Mitakshara are them- 
selves without autlionty among banskrit lawyers, or have authority 
only among obscure and limited sects, one is tempted to ask what 
possible amount oi evidence he would consider sudicient to estab- 
lish the contrary? Can Mr. Nelson put his hnger upon any 
single law book subsequent to the probable dates of Manu and 
Yajnavalkya in which tJiose sages are not referred to, not only 
witli respect and reverence, but with absolute submission ? If the 
Mitakshara is a work of no autnority, how does it happen that 
every pundit in every part of India, except Bengal, invariably cites 
V^ijnanesvara in support of liis opinion ? Mr. iN'elson's grotesque 
suggestion tliat the Mitakshara dates from the seventeenth or 
eighteenth century is dismissed by M. Barth* one of the greatest 
of living Sanskrit scholars, with the summary remark : — *' Every 
orientalist who has read Golebrooke will answer that, if that 
admirable inquirer had foimd nothing better to write about the 
Mitakshara, he would not have written a line upon the subject." 
His proposal that every lawr suit should commence with an 
exhaustive enquiry as to the legal usages, if any, by which the 
respective parties considered they were bound, is a sly stroke of 

• Hevue Critique, lb82, p. 165 ; the article contains a thorough examination of Mr. 
Nelson's views, and seems to me to ba a model of acute, candid, and courteous criticismi 
B 



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i Preface* 

humour which cannot be too much admired. Coming from an 
opponent it might have been considered malicious. I fancy that 
Mr. Nelson, as a Judge, would be the first to resist the application 
of his own proposal. 

An unusual number of important decisions have been recorded 
since the publication of the last edition, and it will be seen 
that several portions of this work have been re-written in conse- 
qaence. The law, as to the liability of a son for his father*s debts, 
and as to the father's power of dealing with family property to 
liquidate such debts, seems at last to be settling down into an 
intelligible, if not a very satisfactory, shape. The controversies 
arising out of the text of the Mitakshara definmg stridhanum 
appear also to be quieted by direct decision, and the conflicting 
view of woman's rights taken by the Bombay High Court has at 
last been restricted and defined, and made to rest upon inveterate 
usage, rather than upon written law. A single decision of the 
Privy Council has established the heritable right of female 
Sapindas in Bombay, and recognized the all-important principle, 
that succession under the Mitakshara law is based upon pro- 
pinquity, and not upon degrees of religious merit. 

JOHN D. MAYNE. 
Inner Temple, 

January 1883. 



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PREFACE- 



I HAVE endeavoured in this work to show, not only what the 
Hindu Law is, but how it came to be what it is. Probably many 
of my professional readers may think that the latter part of the 
enquiry is only a waste of time and trouble, and that, in pursuing 
it, I have added to the bulk of the volume without increasing its 
utility. It might be sufficient to say that I have aimed at writing 
a book, which should be something diflferent from a mere practi- 
tioner's manual. 

Hindu Law has the oldest pedigree of any known system of 
jurisprudence, and even now it shows no signs of decrepitude. 
At this day it governs races of men, extending from Cashmere to 
Cape Comorin, who agree in nothing else except their submission 
to it. No time or trouble can be wasted, which is spent in in- 
vestigating the origin and development of such a system, and the 
causes of its influence. I cannot but indulge a hope that the very 
parts of this work, which seem of least value to a practising lawyer, 
may be read with interest by some who never intend to enter a 
Court. I also hope that the same discussions, which appear to 
have only an antiquarian and theoretical interest, may be found of 
real service, if not to the counsel who has to win a case, at 
all events to the judge who has to decide it. 

The great difficulty which meets a judge is to choose between 
the conflicting texts which can be presented to him on almost 
every question. This difficulty is constantly increased by the 
labours of those scholars who are yearly opening up fresh sources 
of information. The works which they have made accessible are, 
naturally, the works of the very early writers, who had passed into 
oblivion, because the substance of their teaching was embodied in 
more modern treatises. Many of these early texts are in conflict 
with each other, and still more are in conflict with the 
general body of law as it has been administered in our Courts. 

An opinion seems to be growing up that we have been going 
fill wrong ; that we have been mistaken in taking the law from its 



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Xii PREFACE. 

more recent interpreters, and that our only safe course is to revert 
to antiquity, and, wherever it may be necessary, to correct the 
Mitakshara or the Daya Bhaga by Manu, Gautama, or Vasishtha. 
Such a view omits to notice that some of these authors are perhaps 
two thousand years old, and that even the East does change, 
though slowly. The real task of the lawyer is not to reconcile 
these contradictions, which is impossible, but to account for them. 
He will best help a judge who is pressed, for instance, by a text 
which forbids a partition, or which makes a father the absolute 
despot of his family, by showing him that these texts were once 
literally true, but that the state of society, in which they were true, 
has long since passed away. This has been done to a considerable 
extent by Dr. Mayr in h's most valuable work, Das Induche 
Erbrecht. He seems, however, not to have been acquainted with 
the writers of the Bengal school, and of course had no knowledcfe 
of the developments which the law has received through nearlv a 
century of iud'cial decisions. I have tried to foHow in the course 
marked out by him, and by Sir H. S. Maine in his well-known 
writings. It would be presumption to hope that I have done so 
with complete, or even with any considerable, success. But Thone 
the attempt may lead the way to criticism, which will end in the 
discovery of truth. 

Another, and completely different current of opinion, is that of 
those who think that Hindu Law, as represented in the Sanskrit 
writings, has little application to any but Brahinans, or those who 
accept the ministrations of Brahmans, and that it has no bearing 
upon the life of the inferior castes, and of the non-Aryan races. 
This view has been put forward by Mr. Nelson in his ** View of 
the Hindu Law as administered by the Madras High Court." In 
much that he says I thoroughly agree with him. I quite agree 
with him in thinking that rules, founded on the religious doctrines 
of Brahmanism, cannot be properly applied to tribes who have 
never received those doctrines, merely upon evidence that they are 
contained in a Sanskrit law book. But it seems to me that the 
influence of Brahmanism upon even the Sanskrit writers has been 
greatly exaggerated, and that those parts of the Sanskrit law, 
which are of any practical importance, are mainly based upon usage 



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PREFACE. XIU 

which, in substance, though not in detail, is common, both to 
Aryan and non-Aryan tribes. Much of the present work is devoted 
to the elucidation of this view. I also think that he has under- 
estimated the influence which the Sanskrit law has exercised, in 
moulding to its own model the somewhat similar usages even of 
non- Aryan races. This influence has been exercised throughout 
the whole of Southern India durinor the present century by means 
of our Courts and Pundits, by Vakils, and officials, both Judicial 
and revenue, almost all of whom, till very lately, were Brahmans. 
That the Dravidian races have any conscious belief that they 
are following the Mitakshara, I do not at all suppose. Nor has an 
Englishman any conscious belief that his life is guided by 
Lord Coke and Lord Mansfield. But it is quite possible that these 
races may he trying unconsciously to follow tbe course of life which 
is adopted by the most respectable, the most intellectual, and the 
best educated among their neighbours. The result would be 
exactly the same as if they studied the Mitakshara for themselves. 
That this really is the case is an opinion which I arrived at, after 
fifteen years' acquaintance with the litigation of everv part of the 
Madras Presidency. Even in Malabar T have witnessed continued 
efforts on the part of the natives to cast off their own customs 
and to deal with their property by partition, alienation, and 
devise, as if it were governed by the ordinary Hindu Law. These 
efforts were constantly successful in the provincial Courts, but were 
invariably foiled on appeal to the Sudder Court at Madras, the 
objection being frequently taken for the first time by an English 
barrister. Tt so happened that, during the whole time of this 
silent revolt, the Sudder Court possessed one or more judges, who 
were thoroughly acquainted with Malabar customs, and by whom 
cases from that district were invariably heard. Had the Court 
been without such special experience, the process would probably 
have gone on with such rapidity that, by this time, every Malabar 
tarwdd would have been broken'up. The revolt would have been 
a revolution. 

A third class of opinion is that of the common-sense English- 
man, whose views are very ably represented by Mr. Cunningham 
— rnow a Judge of the Bengal High Court — in the preface 



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XIV PREFACE. 

to his recent " Digest of Hindu Law." He appears to look upon 
the entire law with a mixture of wonder and pity. He is amused 
at the absurdity of the rule which forbids an orphan to be adopted. 
He is shocked at finding that a man's great-grandson is his 
immediate heir, while the son of that great-grandson is a very 
remote heir, and his own sister is hardly an heir at all. He thinks 
everything would be set right by a short and simple code, which 
would please everybody, and upon the meaning of which the 
judges are not expected to diflfer. These of course are questions 
for the legislator, not for the lawyer. I have attempted to offer 
materials for the discussion by showing how the rules in question 
originated, and how much would have to be removed if they were 
altered. The age of miracles has passed, and I hardly expect to 
see a code of Hindu Law which shall satisfy the trader and the 
agriculturist, the Punjabi and the Bengali, the pundits of Benares 
and Ramaiswaram, of Umritsur and of Poona. But I can easily 
imagine a very beautiful and specious code, which should product 
much more dissatisfaction and expense than the law as at present 
administered. 

I cannot conclude without expressing my painful conscious- 
ness of the disadvantage under which I have laboured from my 
ignorance of Sanskrit. This has made me completely depend- 
ent on translated works. A really satisfactory treatise on Hindu 
Law would require its author to be equally learned as a lawyer 
and an Orientalist. Such a work could have been produced by 
Mr. Colebrooke, or by the editors of the Bombay Digest, if the 
Government had not restricted the scope of their labours. 
Hitherto, unfortunately, those who have possessed the necessarj' 
qualifications have wanted either the inclination or the time. 
The lawyers have not been Orientalists, and the Orientalists 
have not been lawyers. For the correction of the many mistakes 
into which my ignorance has let me, I can only most cordially 
say : Exoriare aliquis nostris ex ossibus ultor. 

JOHN D. MAYNE. 
Inner Temple, 

July 1878. 



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ABBREVIATIONS AND REFERENCES. 



»»•»» 



North- West Province High Court, 3 vols. [1866-1868] . 
Indian Law Keports, Allahabad Series [from 1876] . 
Ambler's Reports, Chancery. 
Apastamba, Max Miilier's Sacred Books of the East, 

Vol. IL, by Biihler. 
English Law Reports, Appeal Cases. 
Atkyn's Reports, Chancery, tetnpore Lord Hardwicke 

[1736-1754] . 
Quoted in Sutherland's Dattaka Mimamsa. 
The Indian Village Community, by B. H. Baden- 
Powell, 1896. Not to be confounded with a smaller 
work by the same author on the same subject, 1899. 
Barnewall and Alderson [King's Bench, 1817-1822] . 
Bengal Law Reports, High Court [1868-1875]. 
Bengal Law Keports, Supplemental Volume, Full 
Bench Rulings, in 2 parts [1862-1868] . 

Appellate Civil Jurisdiction. 
Appendix. 
Full Bench. 

Original Civil Jurisdiction. 
Privy Council. 
Baudhayana, Max Miiller's Sacred Books of the East, 

Vol. XIV., by Biihler. 
Beavan's Reports, Rolls Court, tempore Lord Lang- 
dale and Sir John Romilly [1838-1863]. 
Bombay Sudder Dewany Adawlut Reports. 
Bombay Series of the Indian Law Reports [from 

1876] . 
Bombay High Court Reports [1863-1875] . 

„ „ „ Appellate Civil Jurisdiction. 

„ Original 

Bom, Sel. Rep. Bombay Select Reports, Sudder Dewany Adawlut. 
Bor. Borrodaile's Reports (Bombay Sudder Adawlut), Folio, 

1825. [The references in brackets are to the paging 
of the edition of 1862] . 



Agra. 
All. 
Amb. 
Apast. 

Ap. Ca. 
Atk. 

Atsi. 
Baden-Powell. 



B. and Aid. 
B. L. R. 
B. L. R. (Sup 
Vol.) 

a. c. j. 

app. 

f. b. 

o. c. ' 



J- 



Baudh. 

Beav. 

Bellasis. 
Bom. 

Bom. H. C. 

a. c. j. 

o. c. j. 



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XVI 



ABBREVIATIONS AND REFERENCES. 



Boul. Boulnois, Calcutta Supreme Court [1856-1859] . 

Bourke. Calcutta High Court, Original side, 1 vol, [1865] . 

Breaks. Primitive Tribes of the Nilaghiris, by J. W. Breeks» 

Esq. 
Cal. Indian Law Reports, Calcutta Series [from 1876] . 

Census Reports. Reports forming part of the Census of the Indian Em- 
pire for 1891. Under this head are cited similar 

reports of the Native States of Cochin, Mysore, and 

Travancore. 
Ch. I). English Law Reports, Chancery Division. 

Cole. Pref. Colebrooke's Prefaces to the Daya Bhaga and the Digest, 

Essays. Colebrooke's Essays. 

Coop. Geo. Cooper's (George) Reports, Chancery, tempore Lord 

Eldon [1815]. 
Coryton. Calcutta Reports, High Court, Original side, 1 vol. 

[1864] . 
D. Bh. Daya Bhaga, by Jimuta Vahana. (Colebrooke.) 

D. Ch. Dattaka Chandrika. (Sutherland.) 

Dig. Jagannatha's Digest. (Colebrooke.) 3 vols. [1801] . 

D. K. S. Daya Krama Sangraha. (Wynch.) 

D. M. Dattaka Mimamsa. (Sutherland.) 

Domat. Domat's Civil Law. 

Dubois. Enlarged edition (1897) of Hindu Manners, Customs, and 

Ceremonies, by the Abb6 Dubois. 
Elb. Elberling on Inheritance, etc. [1844] . 

F. MacN. Sir F. MacNaghten's Considerations on Hindu Law 

[1829] . 
Fult. Fulton's Reports, Surpreme Court, Calcutta [1842-. 

1844] . 
Gaut. Gautama, Max Miiller's Sacred Books of the East, 

Vol. II., by Biihler. 
Gib. Gibelin. Etudes sur le Droit civil des Hindous 

[1846] . 
Goldst. Goldstiicker's Present Administration of Hindu Law 

[1871], • 
Hay. Calcutta High Court, Appellate side, 2 vols. [1862- 

1863] . 
Hyde. Calcutta Reports, High Court, Original side, 2 vols. 

[1864-1865]. 



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ABBREVIATIONS AND REFERENCES. 



XVll 



LA. 

I. A.. Sup. Vol. 

lb, or Ibid. 
Ind. Wisd. 
Jac. and W. 

John. 

Jolly, Lect. 
Jolly, Recht 
u. Sitte. 

Kn. 

Lewin. 

L.R.(P.andD.) 

Mad. 

Mad. Census . 

Mad. Dec. 



Mad. H. C. 
Madhav. 
Mad. Jur. 
Mad. Law Rep. 

Mad. Man. 

Rev. Reg. 

Maine. 

Mai. Man. 
Mai. Mar. Rep, 
Man.Mad.Adm 

Mandlik 



Manu. 



English Law Reports. Indian Appeals [from 1873] . 
English Law Reports. Indian Appeals. Supplemental 

Volume [1872-1873]. 
The same reference as the one immediately preceding. 
Monier Williams' Indian Wisdom [1876] . 
Jacob and Walker's Reports, Chancery, tempore Lord 

Eldon [1819-1823]. 
Johnson's Reports, Chancery, before Sir Page Wood 

[1868-1860] . 
Dr. Jolly's Tagore Lectures, 1883. 
This work, which has been published separately, forms 

part of the Encyclopaedia of Indo-Aryan Research, 

edited by Dr. Biihler. 
Knapp's Privy Council Cases [1831-1836] . 
Lewin on Trusts, 6th ed., 1875. 
English Law Reports, Probate and Divorce. 
Madras Series of the Indian Law Reports [from 1876] . 
Madras Census Report, by Dr. Cornish, 1871. 
Decisions of the Madras Sudder Court. The selected 

decisions from 1805-1847 are cited by volumes : the 

subsequent reports, by years. 
Madras High Court Reports [1862-1876] . 
JMadhava's Daya Vibhaga. (Burnell) [1868] . 
Madras Jurist, 11 vols. [; 1866-1876] . 
The Madras Law Reporter, one Volume ; High Court 

[1877]. 
Manual of the Madura District, J. H. Nelson, 1868. 
Madras Revenue Register [1867-1874]. 
The various Works of Sir Henry Sumner Maine ai*e 

cited from the Ist edition of each. 
Malabar Manual, by W. Logan, 3 vols. [1887-1891]. 
Report of the Malabar Marriage Commission, 1894. 
Manual of the Administration of Madras, Vol. I., 1885, 

by Dr. Maclean. 
The Vyavahara Mayukha and Yajnavalkya, with In- 
troduction and Appendices, Bombay (1880), by Rao 

Saheb V. N. Mandlik. 
Cited from translation, by Sir William Jones, also by 

Biihler, Majt Miill^r's Sacred Bopks pf thp East, Vol, 

XXV. 



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xviii 



ABBBBVIATIONS AND BEFEBBN0B8. 



The Patriarchal 
J. F. McLennan, 



vol. 



Marsh. Marshairs Cases on Appeal to the High Court of 

Bengal [1864]. 

A S L ( Ancient Sanskrit Literature. 

Mayr. Das Indische PJrbrecht [1873] . 

McLennan. Studies in Ancient History [1876] . 

Theory. A posthumous work by 

edited by Donald McLennan (1885). 
Mit. Mitakshara. (Colebrooke.) 

M. Dig. Morley's Digest. 2 vols., Calcutta [1850] . 

M. J. A. Moore's Indian Appeals [1836-1872] . 

Morton. Decisions of late Supreme Court, Calcutta, 1 

[1774-1848]. 
Montr. Montriou's Hindu Law Cases, Calcutta Supreme Court 

[1780-1801] . 
Morris. Bombay Sudder Adawlut Beports. 

Mysore, Mysore Law Beports [1878-1895]. 

Mys. Ch. Cfe. Mysore Chief Court Beports [from 1896] . 
Nar. Narada, cited from translation, by Biihler, or by Jolly 

[London 187^ . 
N. C. Sir Thomas Strange's Notes of Cases, Madras [1816]. 

Nelson's View. View of the Hindu Law as administered by High Court 

of Madras, Nelson, Madras [1877] . 
„ Scientific A Prospectus of the Scientific Study of the Hindu Law, 
Study. Nelson, Madras [1881]. 

N.-W. P. Decisions of the High Court of the N.-W. Provinces, 

Allahabad [1869-1875]. 
N. Aroot Man. Manual of North Arcot, by A. F. Cox, new edition by 

H.A.Stuart [1895]. 
P. C. Privy Council. 

Perry 0. C. Sir Erskine Perry's Oriental Cases, Bombay Supreme 

Court. [1853]. 

Punjab ) Notes on Customary Law as administered in the Courts 

Customs. J of the Punjab Boulnois and Battigan, 1876. 

Punjab Cus- > Three Volumes, edited by C. L. Tupper, C.S., Calcutta 
tomary Law. > [1881] . 

P. Williams. Peere Williams' Beports, Chancery [1695-1735] . 

Baghtman- The Daya Tattwa of Baghunandana, translated by 
4ana, Gojab Chpjidra Sw^kar Sastry, Calqutta, 1874, 



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AbBRBT^ATIOliS AND RI^rtSRENdBS. 



XIZ 



Baj. Sarvad- 

hikari. 
Batnakara. 
8.C. 

S. Can. Mail. 
8. D. 



Sev. 
Sm. Ch. 
Sorg H. L. 



Sorg Mt. 
Co. Con. 

Spencer. 
Stokes, 

H.L.B. 



Story. 
Stra. H. L. 
Stra. Man. 
Suth. 
Suth. Mis. 
Suth. (P. C.) 
Suth. Sp. No. 

Suth. Syn. 



T.&B. 

Teulon. 

Thesawal. 



>Mr. Bajkumar Sarvadhikari's Tagore Lectures, 1880. 

Commentary on Hindu Law, by Chandesvara Thakkura. 

Same Case. 

Manual of South Canara District, by J. Sturrock, 1894. 

Decisions of the Bengal Sudder Court. The selected 
decisions from 1791-1848 are cited by volumes, with 
a double paging, which refers to the original edition, 
and to that recently published in Calcutta. The 
subsequent reports are referred to by years. 

Cases on Appeal to High Court of Bengal in continua- 
tion of Marshall, by Sevestre [1869] . 

Smriti Chandrika. (Kristnasawmy Iyer), Madras 
[1867] . 

Treatise on Hindu Law applicable to the French 
establishments in India, by Leon Sorg, Chief Justice 
of the Court of First Instance in Pondicherry, 1897. 

Introduction to the Study of Hindu Law. 

Opinions of the Consultative Committee of Indian 
Jurisprudence at Pondicherry. 

Principles of Sociology. 

Stokes' Hindu Law Books, Yyavahara Mayukha, by 
Borrodaile; Daya Bhaga and Mitakshara, by Cole- 
brooke ; Dattaka Mimamsa, and Dattaka Chandrika, 
by Sutherland [Madras, 1866]. 

Equity Jurisprudence. 

Sir Thomas Strange's Hindu Law [1830] . 

Mr. T. L. Strange's Manual of Hindu Law, 1863. 

Weekly Eeporber [Calcutta, 1864-1877] . 
„ „ Miscellaneous Appeals. 

„ „ Privy Council Rulings. 

„ „ Special Number. Full Bench Rul- 

ings, July 1862 to July 1864. 

Mr. Sutherland's Synopsis of the Law of Adoption. 
The paging refers to this work as printed in Mr. 
Stokes' Hindu Law Books, Madras, 1865. 

Taylor and Bell. (Supreme Court of Calcutta.) 

La M6re. Par A. Girard Teulon. 1867. 

The Thesawaleme; or. Laws and Customs of Jaffna. 
(H. F. Mutukisna.) 1862. 



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jtx 



ABB^BVIAOJIONS ANt) RB]^ERBNCE8. 



Varad. Varadrajah's Vyavahara Nirnaya (Burnell), 1872. 

Vas. Vasishtha, by Biihlftr. Max Miiller's Sacred Books of 

the Bast, Vol. XIV. 
V. Darp. Vyavastha Darpana, by Shamachum Sircar, 1867. 

Ves. Vesey's (Junior) Reports, Chancery [1789-1817]. 

Ves. Sen. Vesey's (Senior) Reports, Chancery, tempore Lord 

Hardwicke [1746-1755]. 
Vill. Com. Maine's Village Communities [1871] . 

Viramit. The Law of Inheritance as in the Viramitrodaya 

of Mitra, by Gopalchandra Misra Sarkar Sastri, 

Calcutta, 1879. 
Visvarupa. Commentary on Yajnavalkya by; translated by 

S. Sitarama Sastri, Madras, 1900. 
Vish. Vishnu, cited from translation \)y Biihler, or by Jolly, 

Max MuUer's Sacred Books of the East, Vol. VII. 
Viv. Chint. Vivada Chintamani, by Vachespati Misra. (Prosonno 

Coomar Tagore.) 1865. 
V. May. Vyavahara Mayukha. (Borrodaile.) 

V. N. Mandlik. The Vyavahara Mayukha and Yajnavalkya, with In- 
troduction and Appendix, by Rao Saheb Vishvanath 

Narayan Mandlik, Bombay, 1880. 
W. & B. West and Buhler's Digest, Bombay, 3rd ed., 1884. 

W. B. Sutherland's Weekly Reporter. [A few cases have 

been accidentally cited from tbese reports under this 

designation instead of " Suth."] 
W. MaoN. W. MacNaghten's Hindu Law, 1829. 

Wigram. A Commentary on Malabar Law and Custom, by Herbert 

Wigram, M.C.S., 1882. 
Wym. Wyman's Civil and Criminal Reports, Calcutta. 

Yaj. Yajnavalkya, cited from translation, by Dr. Roer, or 

Professor Stenzler. 



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CONTENTS. 

The references throughout are to paragraphs. 



CHAPTER I. 
ON THE NATURE AND ORIGIN OP HINDU LAW. 

Conflicting views as to the authority of the Sanskrit writers, 1—3. Law is 
based on immemorial usage, 5. Later growth of Brahmanical influence, 7. 
Unconnected with system of joint family, 8. Subsequently introduced into 
law of inheritance, 9, and law of adoption, 10. Mode in which it has exercised 
an indirect influence, 12. Practical conclusions, 13. 



SOURCES OF HINDU LAW. 



CHAPTER II. 

TEXTS AND DECISIONS. 

The Smritis, 15. Sutras, 17. Works in verse more recent, 19. Manu, 20. Yajna- 
valkya, 22. Narada, 23. Secondary works, 24. The commentators, 25. Visvarupa, 
Mitakshara, Apararka, 26. Smriti Chandrika and works of authority in Southern 
India, 27. Mayukha and Viramitrodaya, 28. Mithila and its authorities, 29. 
Treatises on adoption, 30. Daya Bhaga, 31. Halhed's Code and Jagannatha's 
Digest, 32. Mimamsa of Jaimini, 33. His rule of interpretation, 34. Different 
schools of law, 35. Characteristic doctrines of Jimuta Yahana, 37. Differences as 
to female rights, 38, and law of adoption, 39. Judicial decisions, 40. Force of 
usage, 41. 

CHAPTER III. 

CUSTOMARY LAW: 

Validity of customs, 42, 43. Kecorded instances, 44. Baces which do not accept 
religious principles, 46. Law follows the person, 48 ; till abandoned, 49. Origin and 
eyidence of binding custom, 50. Onus of proof, 51. Must be ancient, 52, and 
eontiouoas, 63. Family custom valid, 54. Must not be opposed to morality or 
public policy, 55. Change of family usage, 56. Result of conversion to Muham- 
medanism, 57> or Chiistianity, 59. Illegitimate offspring of European, 60. 



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FAMILY EELATIONS. 



CHAPTER IV. 

MARRIAGE AND SONSHIP. 

Anomalies in early family law, 61. Polyandry among non-Aryan races, 62 ; 
among Aryans, 63 — 65. Explanation of anomalies, 66. Different sorts of sons, 67. 
Necessity for sons, 68. Hindu notion of paternity, 69. Theory and practice of 
niyoga, 70 ; not a survival of polyandry, 72. Marriage with brother's widow, 73. 
Application of principle to other sons, 74 — 76. Adopted sons, 77. All but two now 
obsolete, 78. Eight forms of marriage, 79. Their relative antiquity, 80. Modi- 
fications of marriage by purchase, 81. The approved forms, 82. Only two survive, 83. 
Who may dispose of bride, 84. Exogamy and endogamy, 86. Mixed marriagee, 88. 
Now obsolete, 89. Capacity for marriage, 90. Infant marriage, 91. Poly- 
gamy, 92. Second marriages of women and divorce, 93, 94. Betrothal and mar- 
riage ceremonies, 96. Results of marriage, 96. Malabar marriages, 97—102. 

CHAPTER V. 
ADOPTION. 

Its importance, of recent growth, 103. Diminution in number of adopted sons, 
105. Not founded exclusively on religious motives, nor limited to Aryan tribes, 106. 
Early texts, 107. Who may adopt. Persons without issue, 108. Bachelors and 
widowers, 109. Disqualified heirs, 110. Minors, 111. Wife or widow, 112. 
Nature of authority to widow, 113 ; must be strictly followed, 114. Power incapable of 
being exercised, 115 — 116. Adoption by minor or unchaste widow, 117 ; several 
widows, 118. Widow's discretion, 119. Assent of sapindas in Southern India, 120 
— 126. Religious motive for adoption, 127. Power of widow in Western India, 130 ; 
among Jains, and in Punjab, 131. Only parents can give away son, 132. Power to 
impose conditions, 133. Conseut of government, 134. Restrictions on selection of son, 
135 ; of Brahmanical origin, 136. Caste, 138. Age, 139. Previous performance of 
ceremonies, 142. Only or eldest son, 144. Privy Council decision, 147 ; two persons 
cannot adopt same boy, 149. Necessary ceremonies, 150 ; intentional omission, 154. 
Doctrine of favtum calet, 155. Evidence of adoption, 157. Ees judicata^ 158. 
Effect of lapse of time as evidence, 159. Estoppel, 160. Statutory bar, 161. Results 
of adoption, 164. Lineal and collateral succession, 165. Succession ex parte 
matemd, 166. To stridhanum of adoptive mother, ib. Right of succession 
between wives of adopter and adopted son, 167 ; dwyamushyayana and his natural 
mother, 167A; where legitimate son afterwards born, 168. Where adopted son 
competes with collaterals, 169. Survivorship between adopted and legitimate son, 
171. Removal from natural family, 172 ; case of dwyamtishyayana^ 173 ; in Punjab 
and Pondicherry, 176. Where adoption is invalid, 176; validity of gift to person 
falsely supposed to be adopted, 180. Cases in which an estate is devested by widow's 
adoption, 184. Effect of assent in rendering effectual an invalid adoption, 192. 
Postponement of son's rights, 196 ; how far bound by acts of vridow, 197, or previous 
male holder, 198. Woman cannot adopt to herself, unless in case of dancing girls, or 



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CONTENTS. 



xxiii 



in Kritrima form, 199. Kritrima adoption, 200 ; peculiarities, 202 ; results, 204 ; 
woman may adopt to herself, 205 ; no ceremonies, 206 ; practised by Buddhists in 
Burma ; resembles usage of Jaffna, ib. Ulatom adoption, 207. Malabar adoptions, 
208. 

CHAPTER VI. 

MINORITY AND GUARDIANSHIP. 

Period of minority, 210. Who may be guardian, 211. Effect of conversion on 
right to custody of minor, 212. Paternal rights over minors, 214. Ca$ie of illegiti- 
mate child, 317. Minor when bound by contracts, and acts of guardian, 218 ; effect 
of false statement as to age by minor, 220; when bound by decrees, 221. Suits 
against guardian, ib. 



FAMILY PBOPEETY. 



CHAPTER VII. 

EARLY LAW OP PROPERTY. 

Peculiarities of Hindu Law, 222. Three forms of corporate property, id. Village 
Communities in the Punjab, 224 ; in Southern India, 225. Fiction of common des- 
cent, 226. Nairs, Kandhs, 227. The Patriarchal Family, 230. The Joint Family, 
2.S1. Mr. McLennan on the Family, 232. Evolution of private property, 234. 
Traces of village rights in Sanskrit law, 236 ; right of pre-emption, 237. Self- 
aoquisiticn : its origin, 239 ; restrictions, 240, and rights, 241. Partition, 242 ; its 
ripe, 243 ; growth of sou's right, 244 ; decay of parents' rights, 246 — 247 ; Bengal law, 
248. Alienation, 251. Right of sons by birth, 253. Power of father over moveable, 
255, and self-acquired land, 257. Contrary doctrines of the Daya Bhaga, 259. 
Brahmanical influence, 261. Unequal partition, 264. Interest of coparceners in 
their shares, 265. Rights of women, 266. 

CHAPTER VIII. 

THE JOINT FAMILY. 

Presumption of union, 268. Survivorship, 270. The coparcenary, 271. Obstruct- 
ed and unobstructed property, 274. Ancestral property, 275 ; effect of partition, 
gift of devise. 276. Jointly acquired property, 277. Property thrown into common 
stock, 278. Impartible property, 279 ; separate property held by coparceners, 280. 
Self-acquisition, 281. Qains of fcience, 282 ; effect of possession of joint funds, 285. 
Oovemment grants, 286. Savings of impartible property, ib. Recovery of ancestral 
property, 387. Acquisitions aided by family funds, 288. Burthen of proof as to 
character of property, 289. Mode of enjoyment of joint property, 292. Position of 
manager, 293. Right to an account, 294 ; to an allotment of a portion of the 
Income, 297. Members must unite in transactions affecting the property, 298. 
E^lits of coparceners inter se^ 299. Family trading partnerships, 800. 



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XXIV CONTENTS. 

CHAPTER IX. 

DEBTS. 

Three Bouroes of liability, 801. Sona bound to pay father's debts without assets, 
802. Exceptions to liability, 303. Obligation now limited to extent of assets, 304. 
Evidence of assets, 305. What property is included in term, 306, 808. When obli- 
gation arises, 807. No benefit necessary, .808. Family property may be alienated or 
taken in execution to satisfy ancestral debts, 309— 3*21. How far decree binds 
sons, 822—325. Apportionment of liability, 326. Heir liable to extent of assets, 
327. Debts not a charge upon estate, 829 ; nor upon share which has passed 
by survivorship, 330. Cases of agency, 333. 

CHAPTER X. 

ALIENATION. 

MiTAKSHABA Law. — Father's power over ancestral moveables, 835 ; as head of the 
family, 386. When only tenant for life, 887. Impartible Zemindary, 838 — 341. 
Who have a right by birth, 342. Case of adopted son, 3^18. Father's power over 
self-acquired land, 844. Consent of coparceners, 845. Necessity, 346. Father's 
right to sell to pay his own debt, 848. Burthen of proof of necessity, 349 ; in case of 
decrees, 850. Powers of manager, 852. Right of coparcener to sell his share, 358— 
868 ; of creditor to seize it, 356. Power of gift or devise, 358, 359. Sa.le enforced 
by partition, 358. Practice in Bombay, 360 ; extent of share how ascertained, 
862. Bengal ruling, 863. Remedies against illegal alienation, 365. Equities on 
setting it aside, 364, 366—370. Bengal Law, 371. Power of father, 372 ; of coparce- 
ner, 373 ; agreement against alienation, 374. Law of gifts, 375. Necessity for pos- 
session, 376. What constitutes possession, 378. Gift to a class of whom scime 
cannot take, 379—384. Completed gift, 385. Possession in case of sale, 386, or 
mortgage, 390. Priorities arising from registration, 391. Writing or technical 
words unnecessary, estates of inheritance and leases, 894. Maintenance grants, 895 ; 
grants to females, 896. Beneficial tenures, 898. Service tenures, 899. Provisions 
of Transfer of Property Act, 402. 

CHAPTBR XI. 

WILLSi^ 

Origin of testamentary power, 404. History of its growth in Bengal, 406; 
in Southern India, 408 ; in Bombay, 416. Wills of minors and married women, 
407. First Privy Council ruling, 412. Power of devise where property separate 
or joint, 417, or impartible, 418. Shifting estate, 419 ; operation of Hindu Wills 
Act, 421. Tagore case, 422. Devise in trust, 423. Only for an estate recognized 
by law, 424, and to a devisee actually in existence, 425. Accumulations and 
restrictions, 426. Power of appointment by will, 428. Form and construction of 
will, 429. Idiot, infant, and disqualified heir may take as devisee, 430. Extension 
to Hindu Wills of Indian Succession Act, 431. Probate and Administration Act, 
432. Posit ionof Executors and Administrfttors, 433. 



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CONTENTS. XXV 

CHAPTERX II. 

RELIGIOUS AND CHARITABLE ENDOWMENTS. 
Favoured by early law, 434. Sanctioned by Courts, 436. Different sorts of 
trust, 437. Powers of trustee, 438. Devolution of trust, 489. Founder's 
rights, 440. 

CHAPTEE XIII. 

BENAMI TRANSACTIONS. 
Origin, 441, and principles of Benami, 442. Effect given to real title, 448 ; unless 
third parties defrauded, 444. Frauds on creditors, 445. Effect of decrees, 448. 
^ght of benamldar to sue on his own title, 449. 

CHAPTER XIV. 

MAINTENANCE. 

Who are entitled, 450. Extent of the right in case of parents and widow, 451 ; 
children, 454 ; wife, 455. Who are liable, 458. Amount, 459. Not a lien on the 
estate against purchaser without notice, 460; until notice of charge actually 
created, 461. Priority of debts, 464. Rights of widow to reside in family house, 
465. Liability of volunteer, 466. 

CHAPTER XV. 

PARTITION. 

What property is divisible, 467, and indivisible, 468. Impartible Raj, 469. 
Mode of taking account, 470. Right of issue to sue ancestor, 471. Passes to their 
issue, 473. Right of son born after division, 472. Bengal law differs, 474. Rights of 
illegitimate sons, 475; of minors or absent co-parceners, 476; of women, 477; 
under Mitakshara, 478 ; of widow in Bengal, 479 ; of mother and grandmother, 480 ; 
daughter, 48*i ; strangers, 488 ; disqualified heirs and their issue, 484 ; how far 
barred by fraud, 485, or agreement, i86. Special and unequal shares obsolete, 
488. Unequal distribution of self-acquisition, 489, or by father in Bengal, 490. 
Partition by some members only, 492, or of only part, 498. When stranger is in 
possession, 494. Evidence of partition actually effected or agreed upon, 495. 
Reunion, 496. 



LAW OF INHEEITANCE. 



CHAPTEE XVI. 

PRINCIPLES OF SUCCESSION IN CASE OF MALES. 

Sucoession applies to separate property only, 498; never in abeyance, 499. 

Bengal system based on religious offerings, 500. How applied to sapindas, 501 ; to 

female ancestors, 503 ; to bandhus, 5:2 ; ex parte patenrd^ 505 ; ex parte matemd^ 

506. Bules for precedence among heirs, 508. Mitakshara based on affinity only, 509. 

D 



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XXVi CONTENTS. 

Meaning of term sapinda, 510. Postpones cognates, 612. Religious principle 
inapplicable to bandhus, 513. Examination of earlier law, 514 ; based on survivor- 
ship, 515 ; how far connected with system of offerings, 516. 

CHAPTEE XVII. 

PRINCIPLES OP SUCCESSION IN CSAE OF FEMALES. 
Position of women depends on family system, 517. Their rights at first only 
to maintenance, 518. Heritable rights of daughter, 519, mother, 521 ; widow, 
522 : only extend to separate property, 526 ; except in Bengal, 527 ; only inherits 
to her own husband, except in Bombay, 529 ; and Pondicherry, 580. Sister 
not an heir, 681, except in Bombay, 532, and by recent decisions in Madras, 
536 - 589. 

CHAPTER XVIII. 

ORDER OP SUCCFSSION. 
Issue, 540. Primogeniture, 641. Illegitimate .sons, 547 ; their share, 550- 
Widow, 553 ; obligation to chastity, 555 ; effect of her marrying again, 556. 
Daughters, 557 ; precedence between, 558. Exclusion of females in Northern India, 
561. Daughter's son, 562 ; several take per capita^ 563. Nature of estate taken by 
descendants ex parte matemA, 563A ; take as full owners, 564. Parents : their 
precedence, 566 ; step-mother not an heir, 566. Brothers, 567. Nephews, 560 
Grandnephews, 671. Ascendants, 672. Sakulyas and Samanodakas, 574. Bandhus : 
sister's son, 575; granduncle's daughter's son, 678. Precedence among bandhus 
by Mitakshara, 579 ; Bengal law, 680; their priority as regards sapindas, 581, 
or sakulyas, 583. Bandhu, ex parte maternd, 534. Laxity as to female succession 
in Bombay, 585, Reunion, 586. Succession of strangers, 688. Escheat, 589. 
Hermit's property, 590. 

CHAPTEB XIX. 

EXCLUSION FROM INHERITANCE. 

Principle of exclusion, 691 ; mitigated by expiation, 592. Outcasts, 593. Mental 
and bodily defects, 694. Vicious conduct, 697. Disability is personal, and does 
not devest estate, 598 ; lets in next heirs at once, 599. Effect of removal of 
disability, or birth of qualified son, 600. Entrance into religious order, 603. 
Whether rules applicable to non-Aryan races, ib. 



WOMAN'S ESTATE. 



CHAPTER XX. 

PROPERTY INHERITED PROM MALES. 

Meaning of stridhanum, 604. Peculiarities of property inherited from a male, 
605. Their reason and origin, 606. Text of the Mitakshara as to stridhanum 
discussed, and held to be erroneous, (JIO. Restrictions on estate of widow, 61Q ; 



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CONTENTS. XXVll 

except in Pondioherry, 612 ; and mother and grandmother, 610, 614 ; and daughter, 
613. Contrary rule in Bombay as to daughter, 614, and sister, 616. Special rule 
for descent of property when inherited by a female in Bombay, 618. Property 
obtained by partition, 621. Nature and extent of a woman's estate, 624 ; hep 
power of enjoyment, 625 ; right to accumulationB, 626 ; to property purchased with 
savings, 62d ; power of disposition, 632 ; enlarged by consent of reversioners, 637 ; 
evidence of consent, 639 ; of acts authorizing transfer, 640 ; executions against her 
estate, 641 ; effect of judgments obtained against, or of lapse of time following on 
dispossession, 648 ; her power over the self- acquired, 644, or moveable property of 
last holder, 645. Remedies : persons who may sue, 646 ; to restrain waste, 647 ; for 
declaration of title, 648. Specific Relief Act, 649 ; suits to set aside adoptions, 
650, or alienations, 651. Effect of declaratory decree, 652. Equities on setting 
aside acts of heiress, 653. 

CHAPTEB XXI. 

PROPERTY NOT INHKRITED FROM MALES. 
Origin and growth of woman's special property, 665. Texts which define it, 
658. The Sulka, 659. Meaning of Yautaka and Saudayika, 660. Property absolutely 
ander woman's control, case of property inherited from female, 662 ; subject to 
husband's control, 663; in which her right is limited, 664. Succession to property 
of a Maiden, 665, 675 ; of a married woman, 666. Devolution of Sulka» 667 ; Yautaka, 
668 ; by Benares law, 669 ; in Bengal, 670 ; of Ayautaka by Benares law, 671 ; in 
Bengal, 672; property given by a father, 673, or inherited from a female, 674. 
Chastity not essential, 676. 



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TABLE OF CASES. 



N.B. — In the citattoJi of cases^ prefixes, such as Stri, Rajah, Rani, 
Maharajah, Maharani, a7id Baboo are omitted, and where the name 
is long, the latter part is left out. The spelling of the Re2x>rt from 
which iJie case is quoted has always been followed, so that the same 
name is often spelt in different ways. The references are to pages. 



A & B, in re 

Abadi v. Asa 

Abaji V. Mukta 

Abalady v. Mt. Lukhymouec 

Abasi V. Dunne 

Abbu V. Kuppammal 

Abdul Aziz V. Appayasami 



PAGE 

. 277 
. 622 
. 499 
. 619 
. 274 
. 287 



— Cadur v. Turner 

— Kareem v. Badrudeen 
Abbachari v. Bamacheudrayya 



409, 414, 

417, 448 

.. 68 



668 
237, 
609 
797 



Abbai Churn v. Mangal 
Abbassi Begam v. Rajroop Koon- 
war.. .. ..274 

Abhaychandra v. Pyari , 37t^ 376, 376, 

378 
Abhoy Churn v. Kally Prasad . . 874 
Abilakh v. Bhakhi . . 234. 812 

Abilak Roy v. Rubbi iloy .. 464 

Abinash v. Harinath 861, 872 

Abool Hossien v. Ragbunath . . 519 
Abraham v. Abraham, 59, 60, 66, 69, 

72 
Achal Ram v, Udai Pertab, 
Achut V. Manjunath 
Achutan Nair v. Cheriotti 
Adalkalam v. Marimuttu 
Adhirance v. 8hona Malee, 



733, 741 
.. 866 
.. 553 
.. 381 
621, 622 
623, 626 
.. 617 
672 



Adibai 17. Cursandas 
Adi Deo v. Dukharan 
Administrator-Oeneral of Madras 

V. Ananda Chari . . 118 

Administrator-Oeueral of Bengal 

V. Apcar 676 

Adrishappa v. Gurushidappa . . 634 
Adarmoni p. Chowdhry 346, 399 
Advocate-General r. Fatima . . 587 
Advocate-General o, Karrnali . . 608 
Advyapav. Rudrava, 769,771,809,904 



PAGE- 

.. 391 

. 276 

. 616 

432 

623 



Aga Hajee v. Juggut 

Agar Ellis, in re 

Agarchand v. Lukhma 

Agborcnatb v. Grishchunder 

Agin V. Mohan 

Ahmedbhoy v. Cassumbhoy 68, 367 

.480 
. 654 
. 466 
. 485 
346, 468 



Aiyyagari v. Aiyyagari 

— V. Ramayya 
Ajey V. Girdharee . . 
A jit Singh v. Biiai . . 
Ajoodhia v. Kashee Gir 
Ajudhia Baksh v. Mt. Rukmin 

Kuar 496, 677 

Akama v. Puttaiya . . . . 274 

Akhoy Chunderv. KalaparHaji. 137 
Akkanna v. Venkayya .. 846 

Akkineri v. Mallapudi . . 860 

Akoba Dada v. Sakharam . . 865 

Akora v. Boreani . . 766, 771 

Alabi Koya v. Mussa Koya . . 536 
Alagappa v. Ramasamy . . 296 

— V. Vellian . . . . 879 

Alamalu v. Rungasami . . 664 

Alamela v. Rengasami . . 480 

Alami v. Komu . . . • 663 

Alangamonjori v. Sonamoni, 603, 677 
A lank Manjari v. Fakir Chand.. 169, 

198 
Alhadmoni v. Gokulmoni . . 770 
Alimelammal v. Arunachellam . 273, 
274, 643 
Ali Hasan v. Dhirja 494, 496 

Alim Buksh t. Jhalo Bibi .. 291 
AlJadinee v. 8reenath . . 383 

Aloksoondry v. Horo . . 694 

Alukmonee v. Banee Madhub . . 866 
Alum V. Ashad .. ..380 

Alwar V. Ramasamy . . 197 

Alymalummaul v. Veucatoovien. 633 
Amanchi v. Munchiraz . . 426 

Aman Singh v. Narain .. 290 



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XXX 



TABLE OF CASES. 



PAGE 

Amava v. Mahad Gauda 184, 251 
Ambabai r. Govind. . 62, 65, 760 

Ambawow v. Rutton . . 715 

Ambika v. Sukhmani . . 672 

Ameeiia v. Badbabinode . . 801 

Amir Singh a. Monzzim . . 380 

Amirbhayyan v. Ketharamayyan. 144 
Amiruddaula v. Nateri . . 495 

Amjad Ali v. Moniram . . 854 

Ammakaunu v. Appu G05, 609 

Ammur u. Mardun . . .. 871 

Amolak v. Chaudan . . 472 

Amrita u. Lakhinarayan 678, 688 
690, 694, 732 
Amrita Lai v. ^Manick 616, 625 

Amrito Lai v, Suruomoyee, 146, 152, 

570 
Amrut V. Trimbuck . . . . 394 

Amiilya v. Kalidas 575, 578 

Anand v. Court of Wards 87J , 875 

— V, Prankisto 654, 657 

— Kaoy. Adm.-Gonl., Bombay, 574 
ADandabai v. Rajaram . . 841 
Anandibai v. Kashibai, 162, 255 
Ananda Bibi v. Nownit Lai, 697, 715 
Anandayyanv. Devarajayyan .. 296 
Anandrav v. Ganesh . . 206 
Anant Balacbarya v. Damodhar. 672 

— Ram y. Channu .. 385' 

— Ramrav v. Kopal . . 380 
Ananta v. Ramabai. . 806, 808 
Atiantaiya v. Savitramma . . 615 
Anantha v. Nagamuthu 496, 582 
Ananthaiya v. Visbnu . . 603 
Anath v. Mackinhosh . . 667 
Andrews v. Joakim. . . . 581 
Angamraal v. Veiikata Roddy . . 904 
Augamuthu v. Kolanda . . 379 
Annaji v. Chandrabai . . 528 
Atmamah v. Mabbu Bali Reddy. 246 
Annapagauda v. Keru . . 286 
Amiapurni v. Forbes 221, 771 
Annasami v, Ramakrishiia . . 586 
Annoda v. Kally Coomar . . 880 
Annundo Mohun v. Lamb . . 366 
Anooragee v. Bhugobutty . . 453 
Anpurnabai v. Durgapa . . 284 
Antaji v. Dattaji . . 257, 260 
Antamma v. Kaveri . . 311 
Anundo Rai v, Kalipersad .. 441 
Anund Chandra v. Nilmoni . . 845 
Anundchund v. Kishen . . 493 
Anund Chunder v. Tcetoram . . 721 

-^ V. Court of Wards 871, 876 

— t?. Dhoraj .. 61, 444, 524 

— Moyoe v. Mohendro . . 853 
Anundee v. Khedoo . . 672, 712 
Anundmoyee t\ Boykantnath . . 686 



PAGE 

Anundmoyee v. Sheebchunder . 140 
Anwar v. Secretary of State . . 573 
Anwari v. Nizam-ud-din . . 500 

Anyaba v. Daji . . . . 875 

Apaji V. Gangabai . . 602, 609 

— Bapuji V. Keshav Shumrav, 441, 

533 

— Narhav V. Ramachandra .. 641 
Appapillay v. Rungapillay . . 673 
Appasami v. Nageppa . . 585 
Appovier v. Rama Subbaiyan . . 336, 

370, 382, 669, 672 
Appu Row V. Venkanna . . 456 

Ardasir v. Hirabai . . . . 578 

Ariyaputri v. Alamelu . . 763 

Armugam v. Sabapathy . . 464 

Arnachellum v. lyasamy 170, 643 
Arumuga V. Viraraghava .. 119 

— V. Ramasami .. 453 
Arumugam v. Ammi Animal, 566,676 
Arunachella v. Muniswarai . . 400 

— r. Vythialinga, 379, 381 

Arunaghiri V. Ranganayaki .. 751 
Arundadi V. Kuppammal .. 158 

Arruth v. Juggernath . . 585 

Ashabai v. Haji Tyeb 68, 589, 672, 
894, 899 
Ashgar v. Delroos . . . . 683 

Ashimullah v. Kali Kinkur . . 632 
Ashutosh V. Doorga Churn . . 667 

— V. Lukhimoni .. 619 
Assar Purushotam v. Ratanbai . . 163 
Aswatia v, Subbaroya . . 467 
Attorney-General V. Brodie .. 687 
Audh Kumari i;. Chandra . . 761 
Auiijona Dasi v. Prahlad Chandra,103 
Aulim V. Bejai .. .. 677 
Aulock i\ Aulock . . . . 513 
Aurairtnlall r. Rajoneekant, 762,765, 

877 

Ayabuttoe v Rajkisscn . . 715 

Ayma Ram v. Madharao . . 199 

Ayyadorai v. Solai . . . . 212 

Ayyappa v. Venkata . . 381 

Ayyavu v. Niladatchi 223, 232 

Azimut V. Hurdwaree 590, ff94 

Aziz-un-Nissa v. Tasadduk . . 522 



Babaji t). Bhagirthibai 


.. 172 


— V. Kashibai . . 


.. 672 


— t\ Krishna . . 


.. 696 


— V. Krishnaji 


.. 467 


— V. Vasudev . . 


.. 473 


Babu V. Nankuram. . 


.. 697 


— r. Timma 


439, 476 


Bachha Jha v. Jugmon 


.. 895 


Bachebi v, Makhan . . 


62, 677 


Bachoo V. Mankorebai 


.. 439 



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TABLE OF CASES. 



XXXI 



PAGE 

Bada «. HnssaBhai.. ..633 

Badri Prasad v. Madan Lai, 395, 401 
Badal v. Chutterdbaree . . 369 

Baee Gunga v. Baee Sheokoovur. 174, 

175 

— Button r. Lall a Munnohar. 114 

— Rnlyat v. Jeychund, 101, 103, 

118 

— V. Lukmeedass .. 608 

— Sheo V. Ruttonjee, 114, 273, 274 
Umrut V. Baee Koosul . . 716 



Bagade v. Ghowdhia 
Bahadur Singh v. Mohar 
Bahar All v. Sookeea 
Bai Amrit v. Bai Manik 

— Baiji V. Santok . . 

— Bapi f . Jamnadas 

— Chadanbai v. Dadi 

— Daya v. Natha Grovindhal . . 

— Devkore r. Amritram, 554 



840,848 

343,858 

. 287 

.. 7J5 

.. 68 

.. 574 

574 

605 

679, 

778 

620 

103 

869 

609 

287 

501 

508 

604 

509 

354 



— V. Sanmukhram . . 
— Diwali V. Moti . . 

— Jamna v. Bai Shanker 

— V. Bai Jadav 

— Kesar n. Bai Ganj^a 

— Kushal V. Lakshma Mana . . 

— Mamubai v. Dossa Moraji . . 

— Mangal v. Rukhmoni 

— Manij^avri r. Narondas 

— Mancbha v. Narotamdas . . 

— Motivahoo c Mamubai, 508,666 

571 
— V. Pursbotam . . 590 

— Nani p. (>bunilal . . 177 

— Nannada v. Bhagwantrai . . 835, 

899,903 

— Parvati c. Tarwadi . . 609 

— Bambai r. Bai Mani . . 536 
— • Suraj V. Dulpatram . . 516 

— Ugri V. Parsbottam . . 118 
Baijnath r. Lacbman Das . . 520 



t'. Mababir 
Baijun c. Brij Bbookun 



765 
853,863 



Bailar Knsbna v. Lakshmana. . 431 

Baisni v. Rnp Singh . . 617 

Bajee v. Pandorang . . 477 

Baknbai v. Mancbhabai . . 759 

Bala V. Balaji . . . . 440 

Balabux v. Rukbmabai . . 666 
Balaji r. Datta Ramchandra . . 172 

— r. Gopal . . . . 380 

— V. Nana . . . . 285 

— V. Ramachandra .. 518 
Balamma v. PuUayya . . 714 
Balaram r. Appa . . . . 521 

— V. Kamcbandra 368, 668 
Balarami v. Pera . . 228, 269 



PAGE 

Balaeuv. Laksbmamma, 164,168,170, 
188,202 
Balbadar v. Bisbesbar . . 428 

Balbhaddar v. Sheo Narain . . 673 
Baldeo v. Jumna . . . . 99 

- V. Mobarak . . . . 482 
Balgobind r. Narain . . 481 

— V. Ramkumar . . 871 
Balgovind i\ Pertab . . 806 

— 17. Lai Babadoor . . 812 
Balkisben r. Ram Narain 643,672 
Balk nshna v. Morokriahna 379,380 

— V. Savitribai, 673,678,751 
Ballabh v. Sunder . . . . 471 
Ballojee v. Venkapa . . 477 
Balmakund v. Bhagwan . . 500 
Balmakundas v. Moti . . 519 
Balusami t\ Narayana 786,786 
Balvantrav r. Bayabai .. 171 
Balwant Singh t'. Raniki»5hori,41,450 
Bama*.oondree v. Itajkrisbto, 683,721 
Bamasoondurcc r. nnund . . 677 

— V. Bania- 

soonduree . . 871 
Bamasoonderi v. Krishna 

Chandra.. 519 

— r. Puddomonee. . 615 
Bamundoss v. Mt. Tarinee, 153,'259, 

541 
Banarsi Das v. Mabarani Kuar . . 379 
Bandhu I? Dhiraji .. .. 274 

Banee Pershad v. Moonsho Syud, 

140,200 
Bank of Hindustan t'.Premchand 500 
Banka Bebari v. Rajkumar . . 596 
Bannoo v. Kasbee Ram . . 369 

Banymadhob t; Juggodumba .. 775 
Baopan v. Makki . . . . 602 

Bapu Anaji v. Hatnoji 240,252,343 
— Lai V- Nankuram . . 697 

Bapuji V. Pandurang . . 814 

— V. Satyabhamabai .. 617 
Barahi v. Dehkamini . . 649 
Bargaru »>. Vijyamachi . . 618 
Baroda Kanta v. Chunder .. 598 

— V. Jatindra . . 866 
Baroda Sunderi r. Dinobundhu. 600 
Basaiingappah r. Gurusanthappa 456 
Basamal v. Maharaj Singh . . 401 
Basappa v. Rayava . . . . 756 
Basava v. Lingangauda, 192,230,266 
Basdeo v. Gopal . . . . 212 
Bashetiappa u. Sbivlingappa, 131,171 
Basoo V. Basco . . . . 187 

— V. Kishon . . . . 584 

— Kooer v. Hurry Daes .. 400 
Basvantrav r. Mantappa .. 61 
Bata Krishna v Chintamani . . 369 



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XXXll 



TABLE OF CASES. 



PAGE 

Bawani v. Ambabay . . 232,283 

Bavabai v. Bala Venkatesh, 153,167 
Bebee Muttra, re ., .. 638 

Beoha v. Mothini . . . . G27 

Bechu Lai v. Oliullah . . 380 

Bochur V. Baee Lukmee . . 869 

Beebee Nyamut v. Fuzl Hossein 591 

— Sowlutoonissa v. Robt. 

Savi .. ..284 

Beer Pertab v. Maharajah 

Rajonder, 62,868,438, 

653,673 

Behari Lai v. Indramani . . 197 

— V. Shib Lai, 185, 222, 229 

— tJ, Madho Lai 856, 860 

— Lalji V. Rajbai . . 624 
Behary v. Madho . . . . 876 
Bemola v, Mohun . . . . 453 
Benares r. Ramkunoar . . 389 
Bengal Govt. v. Jafir Hossein . . 623 
Beni Mahdo v. Basdeo , . 421 

— Pershad r. Dudnath . . 524 

— .'. Parbati . . 430 

— V. Puran Chand. . 346, 

348,416 

— Prasad v. Hardai Bibi 31,37 

187,192 
Bepin Behari v. Brojonath .. 266 

— V. Lai Mohun . . 654 
Beresford v. Rama Subba . . 447 
Berhampore case . . 159, 24 1 
Berjessory v. Ramconny . . 752 
Berogah t?. Nubokissen .. 077 
Bhaba Pershad v. Secretary of 

State .. .. 291 

Bhadri v. Bhugwat . . 652 

Bhagabati v. Kanailal 621,627 

Bhagavatamma c. Pampanna . . 852 
Bhagbut Pershad v. Girja Koer . . 389, 
390, 405, 409, 420, 463 
Bhagbutti v. Chowdhry Bhola- 

nath .. .. 574,845,848 

Bhagirathi v. Ananthacharia . . 622 

— v. Sheobhik .. 4S1 
Bhagirthi Bhai v, Kahnujirav, 29,831 

~ V. Radhabai . . 174 

— V. Baya . . 720 

Bhagvandas v. Rajmal . . 52 

Bhagwan v. Jogcndra 52,677 

— Singh r. Bhagwan, 31,173, 

174,180 
Bhagwant Singh v. Kallu . . 806 
Bhairabuath v. Makishehandra. 196 
Bhaiya Ardawan v. Udey Pertab ^24 
— Rudibat v. Indar . . 258 
Bhairo v. Parmeshri . . 496 

Bhala Nahana v. Parbhu . . 134 

Bhalu Roy v. J4iaku Roy . . 519 



i PAGE 

Bhana r. Chindu . . . . 416 

Bhanrao v. Lakshraibai . . 679 

Bhaoni v. Maharaj Singh, 69, 100 

743 
Bharmangavda v. Rudrapgavda, 826, 

830 
Bhartpur v. Gopal Dei . . 624 

Bhasker Bhachajee v. Narro 
' RaRonath.. 154,172 

— Purushottam v. Saras- 

vatibai . . 600, 621 

— r. Vijalal . . 286, 466 

— Trimbak v. Mahadev Ramji, 

825. 831, 834, 869 
Bhau Babftji t\ Gopala .. 851 

— Nanaji v. Sundarabai, 61, 709, 

758 

; Bhavanamma r. Ramasami . . 624 

Bhawani r. Mahtab.. .. 754 

— Biiksh V. Ramdai . . 421 

— Pershjvd r. Kallu ..402 
Bhikham r. Pura . . . . 627 

' Bhimaji 7J. Giriappa.. .. 530 

Bhimana r, Tayappa .. 237 

Bhimaapaiya v. Ramchandra,532, 633 

I Bhimappa v. Basawa . . 868 

Bhaimawa v. Sangawa . . 166 

I Bhiraul Doss v. Chooneo Lall . . 833 
Bhivrav v. Sitaram . . . . 636 

Bhobrt Tarini v. Peary Lall, 505, 526 
BhoboBoondroe r. Issurchunder.. 511 
Bholai V. Kal i . . . . 874 

Bholanath v. Ajoodhia 364, 367 

— V. Mt. Sabitra 803, 811 

— -J. Rakhul Dass .. 782 
Bhola Pershad r. liam Lall . . 699 
Bhowabul v. Rajendro . . 698 
Bhowaneel t;. Mt. Taramunee .. 493 
Bhowanny Churn v. Ramkaunt 493, 

668 

— V. Purem .. 594 
Bhowna V. Roopkishoro .. 468 
Bhobum Moyee v. Ram Kishore, 144, 

148, 149, 1^*2, 244, 255. 261, 648, 
558, 664, 673, 813 
Bhoobunebsuree v. Gouree Doss, 803 
Bhoobunmoyee v. Ramkissore . . 629 
Bhubancswari v, Nilcomul . . 260 
Bhuggobutty v. Gooroo Prosonno 682 
Bhugwan v. Upooch . . 693 

— V. Biudoo . . 617 
Bhugwandeen v. Myna Baee, 752,763 

825, 837. 868, 870 
Bhujanga v. Ramayamma 628, 890 
F.hujangrav «. Molojirav 57, 738 
Bhujjun r. Gya .. 804 

Bhup Singh v. Lachman .. 614 
Bhupal Ram o. Lschma Kuar . . 860 



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TABLB OF OASBS. 



XXXlll 



PAGE 

Bhupendro Narayan v. Nemye 

Ghand .. ..284 

Bhuwani v. Solakbna . . 857 

Bbyab Ram v. Bhyah Ugur, 692,698, 

731 
Bhrrobee v. Nubkigsen, 715, 770, 825 
Bbyrocbund v. Russomunee . . 659 
Bbynip Cbander v. Kaloe 

Kisbwur .. ..210 

Bbyrup Cbunder v. Gogaram . . 880 
Bibee Solomon v. Abdul Azeez. . 290 
Bibi Sabodra v. Rai Jang . . 852 

— Walian v. Banke Behari . . 291 
Bidboomookbi v, Ecbamoee . . 775 
Bijaya v. Sbama . . . . 158 

Bijia Debia v. Mt. Unnapoorna. . 763, 

825 
Bijoy Gopal v, Nilratan, 853, 868, 876 
Bikan r. Parbutty . . . . 518 

Bilasmoni v, Sbeo Persbad . . 523 
Bilaso r. DinaNatb . . 648, 649 

Bimola v. Dangoo . . . . 761 

Bindat?. KauDsilia .. ..119 

Bindoo v, Bolie . . . . 873 

— V. Pearee . . . . 590 
Binode v. Purdban . . . . 760 
Birajnn Kooerv. Lacbmi Narain. 869 
Bireswar v. Ardaobmider . . 236 
Bircb V. Balgrave . . . . 596 
Birjmohnn t;. Ram Narsingb . . 595 

— Lai i;. Rudra Perkasb, 273 
Birn v. Kbandu . . . . 720 
Bifihambbuc v. Sndasbeeb, 454, 457 
Bisben Cband o. Syed Nadir . . 584 

— Perkasb v. Bawa . . 452 
Bisbenpirea o. Boogunda 11, 770 
Bisehswai r. Sbitul. . . . 360 
Bisbonatb r. Cbunder . . 514 
Bisnath Singb v. Ramcburn .. 59 
Bistobcbari r. Xjsla Biajnatb . . 876 
Bistoo V. Badha Soonder . . 897 
Biswanatb v. Collector of Mymen- 

sing .. 379 

— V. Kbantomaui . . 842 
Bissessur p. Seetul . . . . 360 

— V. liucbmessur 368, 415, 

465, 589, 866 

— V. Joy Kisbore . . 513 

— V. Ram Joy . . 845 
BisKonath o. Bamasoondery, 558, 569 
Bidsonautb v. Doorgapersad . . 273 
Blair v. Duncan . . . . 574 
Boddiugton, inre ., . . 239 
Bodh Singb r. Gunesb, 864, 369, 592 
Bodhnarain v. Omrao, 655, 807, 812 
Bodhrao v. Nursing Rao . . 634 
Bogaras v, Taniore Venkatarav . . 551 
Botount V. Kisnen Soonder . . 245 

B 



PAGK 

Boiddonatb v, Ramkisbore . . 283 
Bolakee v. Court of Wards . . 360 
BolyeChundv. Khetterpaul .. 838 
Boodbun v. Mt. Latecfan . . 514 
Boolcband v. Janokee . . 118 

Boologum V. Swomum . . 358 

Booloka V. Comarasawmy . . 634 
Boyse v. Russborougb . . 542 

Brackenbury v. Brackenbury . . 596 
Brabmappa v. Papanna . . 895 

Brabmavarapu v. Venkamma . . 605 
Braja Bbukan v. Bicban . . 607 

Brajakishor v. Radba Gobind . . 686 
Braja Kisboro v. Rundana . . 525 
— Lalt;. Jiban 407,686,689, 
789,863 
Bramamayl v. Jages, 502, 566, 568, 

575 
Brijbbookunjee v. Gokooloot- 

saojee .. 164,183 

Brij Indar v. Janki Koer 358, 889 

— Mobun v. Ram Nursingb . . 595 
Brimbo v. Ram Dolub . . 594 
Brinda 17. Pearee .. .. 876 
Brindabun v. Cbandra Kurmokar ,103, 

118 
Brindavana v. Radbamani, 100, 746 
Brobmo v, Anund . . 875, 877 

Brojo V. Gouree . . . . 775 

— V. Sreenatb Bose, 776, 787, 875, 

877 
Brojokisboree v. Sreenatb Bobe . . 871 
Brojomobun r. HurroloU . . 587 
Brojonatb r. Koylasb . . 593 

Brojosoondery v. Lucbmee Koon- 

waree .. 582, 583 

Brougbton v, Pogose . . 674 

Bucbi Ramaya v. Jagapatbi . . 869 
Badankayala v. Vinayaka . . 519 
Budree Lall v. Kautee 389, 463 

Bubuns V. Lalla Bubooree .. 592 
Bukhtawar, Will of . . 579 

Buksbun v. Doolbin 287, 457 

Bulakbidas v. Ke8bavlal,752, 762, 830 
Buldeo V. Sbam Lai . . 439 

Bullabakant v. Eisbenprea, 182, 198 
Bullnore v. Wynter . . 239 

Bulwant Singb v. Rosban . . 603 
Bungsee v. Soodist . . . . 381 

Bunsee Lai v. Sbaikb Aoladb . . 481 
Bunwaree v. Mudden . . 585 

Buraik r. Greedbaree . . 454 

Burham v. Punoboo . . 774 

Burtoo V. Ram Purmessur . . 463 
Bussunt V. Kummul . . 612 

Buzrung v, Mt. Mautora . . 290 

Byari v, Puttanna . . . . 476 

By jnath v, Eopilmoo • • 60 



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XXXIV 



TABLE OP CASES. 



Bykunt v. Goboolah 
— V, Grish Chunder 



PAGE 

.. 695 
.. 876 



Callychubn i;. BhugKobutty . . 272 
— V. Jonava ..651 

Callynauth v. Chundernath, 568, 670 
Canacumma », Narasimmah . . 657 
Canaka v. Cottavappah . . 287 

Carter v. Silter . . . . 285 

Caspersz v. Kadernath . . 528 

Cassumbhoy v. Ahmed bhoy . . 638 
Cauminany v. Perumma . . 284 

Cavaly Vencata v. Collector of 

Masulipatam 467, 800, 862 

Cecil V. Butcher . . . . 596 

Chain Sukh v. Parbati . . 176 

Chalakonda v. Ratnaohalam. 62, 353 
Chalamayya v. Varadayya . . 465 
Chalayil Kandotha v. Chathu . . 314 
Chamaili v. Ram Prasad . . 481 

Chamanlal v. Doshi 786, 794 

Chamar v. Kashi . . . . 756 

Chandania v. Salig Ram . . 213 

Chander Kishore v. Dam pat ..481 
Chandra v. Gojarabai 246, 251 

Chandrabhagabai v. Rashinath . .608, 

618 
Chandramala v. Muktamala . . 197 
Chandrika v. Muna . . . . 774 

Chandraeekhara v. Siddalingappa,400 
Chandrasekharudu v. Bramhanna,138 
Chandu v. Raman . . . . 602 

Chaplin v, Chaplin . . . . 696 

Chara Chunder t?. Nobo Sunderi, 761, 

806 
Chatradari v. Run j Behari . • 361 
Chatterbhooj v. Daramsi 346, 349, 

439 
Chaudhri Ujagar v. Chaudhri 

Pitam .. ..449 

Chekkutti v, Pakki . . . . 602 

Chelikani t7. Appa Rau . . 766 

— V, Suraneni, 678, 722, 724, 

782 

— V. Venkataramanayamma, 

766,828 
Chellamamma v, Subamma . . 501 
Chella Papi t?. Chella Roti . 269 
Chellaperoomall v. Veeraperoo- 

mall .. .. 355 

Chellayamal v. Muttialamal . . 360 
Chemmanthatti v. Meyene . . 583 
Chemnautha v. Palakuzhu, 91,93.311 
Chinapa v. Basangavda . . 230 

Chenohamma v. Subbaya . . 269 
Chendrabhan v. Chingooram . . 746 
Chengal Reddi v. Venkata Reddi, 289 
Chen^mma v, Munisami . . 639 



PAGK 

Chennapah v. Chellamanah . . 394 
Chenvirapa v. Danava . . 643 

— V. Puttappa 596, 598 
Chetty Colum Prusunna t?. 

. Chetty Colum Moodoo . . 182 
Cheyt Narain v. Bunwarce . . 379 
Chhabila r. Jadavbai .. 672 

Chicka Byammav. Nanjannah. . 626, 

716 
Chidambara V. Kootha .. 399 

Cbidambaram v. Gouri . . 673 

Chiddu V. Durga Singh . . 878 

— V. Naubat . . . . 838 
Chinnaji v. Dinkar . . . . 861 
Cbinna Gaundan v. Rumara . . 186 

— Rimedy case 11,134,159, 

203, 241, 256, 263, 816 

— Nagayya v. PeddaNagayya,176 

— Obaya v. Sura Reddi . . 268 

— Ramakristna v. Minatchi, 218 

— Sunny asi v. Surya 481, 670 

— Ummayi v. Tegarai . . 63 
Chinnammalv. Varadarajulu, 57, 760 

— V. Venkatachella . . 686, 

719, 730, 786 
Chinnapiel v. Chocken . . 474 

Chinnappat;. Manickavasagam.. 619 
Chinnasamien v. Roottnor . . 723 
Chinnaya v. Gurunathan, 286, 466, 

861 

— V, Perumal . . 440 
Chlntamanrav v. Rashinath . . 389 

— V. Moro Lakshman 573 

— v. Shivram ..618 
ChitkoRaghunathv. Janaki, 169, 257 
Chockalingam v. Mayandi . . 586 
Choondoor v. Narasimmah . . 810 
Choonee v. Prosunno . . 372 

— Lall V, Jussoo 641, 860 
Chotalal v. Manohar . . 687 
Chotay Lall v. Chunno Lall, 46, 729, 

828 

— V. Chunnoo Lai . . 887 
Chotiram v. Narayandas . . 456 
Chowdhrani v. Tariney . . 690 
Chowdhry v. Brojo Soondur . . 462 

— Bholanath v. Mt. 

Bhagabutt: .. 846 

— Chin tarn un v. Mt. 

Nowlukho, 61, 361, 712, 
768 

— Chuttersal v. Govern- 

ment .. .. 285 

— Ganesh v, Mt . Je wacb ,643, 

647, 672 

— Pndum V. Roer Oodey, 

142,113,144,268 
^ Salw 17 Vobamma .. 627 



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VABLE OF OA.^Ed. 



XXXV 



PAGE 

Chowdree v. Hanooman . . 265 

Chowdry v, Russomoyee . . 860 

Chuckun v, Poran . . 371, 376, 382 
Chandee v. MacNaghten . . 87 

Chunder v. Dwarkanath . . 876 

— V. Hurbuns Sabai, 481, 693 
Cbandernatb v. Bboyrub 

Ghunder. 619, 521 
— V. Kristo . . 690 

Cbundi Chum v. Sidbeswari, 666, 667 
Ghundrabnloe v, Brody, 843, 846 
Cbondrabullee's case 144, 149, 182, 
244, 256, 260, 647, 658, 564, 874, 813 
CbuDdrakaminee v. Ramrutton. 692 
Ghondro v. Nobin SooDdu^* . . 66 
Chunilal v. Bamobandra . . 619 

— V, Bai Mala . . 526 
Gbaoturya v, Sahub Parhulad, 603, 

616, 641 
Gbaraman v. Balli . . 619, 622 

Gbatter v. Biicaoo . . . . 485 

Sein'scase.. .. 686 

Clarke, in re . . . . 276 

Goobrane v. Moore ,. . . 498 

GoggaD r. Pogose . . . . 521 

Goleman, re . . . . 506 

Collector of Dacca v. Jagat Chunder, 

801 

— Madura v. Mootoo 

Kamalinga, 27, 29, 30, 
38, 43, 68, 143, 164 

— Masulipatam c. Cavaly 

Venkata,800,819,820, 
826, 841 

— Surat V, Dhirsiogji . . 170 

— Tbana v. Hari . . 684 

— Tirhoot w.Huropersad, 267 

— Triohinopoly v. Lekka- 

mani . . 93 

Gollycbund r. Moore .. 866 

GoUydoss v. Si bcb under . . 617 

Gomulmoney o. Bammanath . . 628 
Gomarasawmy v, Seilummaul . . 606 
Gommula, re . . . . 638 

Gooppa V. Soshappien . . 869 

Gooppummal v. Kookmany . . 604 
Cooverji v, Dewsey . . 409, 41t., 420 
Goseerat v. Sudaburt . . 481 

Gossinaut Bysack v, Harroo- 

Boondry, 492, 641, 838, 842, 860, 
868 
Oottington v. Fletcher . . 596 

Coort of Wards v. Mohessur . . 885 
Growdee v, Bhekdaree . . 383 

GoUoor Narainsawmy, in re . . 277 
Cunjhunuee v. Gopee . . . 616 

Gunniah Chetty r. Lutcbme- 

narasoo .. 568 



Gursandas t;. Ladkavahoo 



PAOB 

.. 290 



Dabo Mi88£b V. Srinivaa .. 687 
Dabychurn v. Badachurn . . 108 
Dadaji v. Bukmabai 119, 610 

Dadj ee v, Wittal . . 380, 668 , 809 
Dagdu V. Balv/ant . . . . 600 

— v. Pancbom.. .. 511 
Dagumbarce v. Taramonee, 176, 220 
Daji r. Dhirajram . . . . 291 
Daiibai i;. Gopebai . . . . 284 
Dalip V. Ganpat . . . . 747 
Dalpat Narotam v. Bhugvau, 831, 836 
Dalsukharm v. Lidlubhai * . 627 
D'Alton V. D'AlDon . . . . 281 
Daltu V. Meghu . . . . 013 
Damoderdas v. Tapidas . . 574 

— V, Uttamram, 372, 376, 

632, 636, 643, 647 
Damodur v, Parmanandas, 869, 886 
— V. Senabutty 644, 647 

Damoodhur v, Birjo . . 466 

Damoodhur v. Mohee Kant . . 876 
I>anno v. Darbo .. .. 761 

Dantuluri v. Mallapudi . . 889 

Darsu v. Bikarmajit .. 399 

Dasapa v. Ghikama. . . . 279 

— V. Nanjundia .. 400 
Dasari v. Dasari . . . . 668 
Das Merces v. Cones • • 581 
Dasharathi V. Bipin Behari .. 898 
Datel V. Ambika . . . . 262 
Dattaji V. Kalba .. ..863 
Dattaram v, Gungaram . . 284 
Dattatraya v. Mahadaji . . 633 
Daiti Paribi v. Datti Bangaru, 746, 

747 
Daulet Bam v. Mehr Chand, 409,434 
DavJes v. Obty . . . . 696 

Dawson, re . • . . 602 

Debee Dial v. Hur Hor Singh, 170, 186 
Debeudra v. Brojendra Goomar, 493, 

629 

— V. Hemchandra . , 432 
Debi Dayal v. Bhan Pertab, 851, 864 

— Dutt V. Subodra . . 284 

— Parshad «. Thakur Dial . . 342 

— Sahal V. Sheo Shankar . . 901 
Debnatb v. Gudadhur . . 689 
Deendyal v. Jugdeep 406, 407, 416 

427, 464, 471, 473, 486, 653 
Deep Chund v, Hurdeal . . 866 

Deepo Debia o, Gobindo Deb . . 10 
Deepoo 17. Gowreeshunker . . 266 
Degambery v. Taramony . . 220 

Delroos v. Nawab Syud . . 683 

Denonatih v. Hurrynarrain . . 367 
Deo Baee v. Wan Baee • • 563 



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XXXYl 



TABL£ OF CASBR. 



PACB 

Deo Bunsee v, Dwarkanath . . 643 

— Pershad v. Lujoo . . 828 

Deokee v. 8ookhdeo 759, 771 
Deokishen v. Budh Prakaeh, 807, 812 

Deokuar v. Mankuar . . 509 

Deotaree v. Damoodhur . . 455 

Deowanti v. Dwarkanath • • 648 

Deva V, Bam Manohar . . 465 

Devaraja v, Devaraja . . 669 

— V, Venayaga .. 568 
Devi Persad v. Gumvanti 607, 617 
Devji v. Sambhu .. .. 415 
Devuv. Daji .. ..702 
Dewakur v. Naroo . . . . 379 
Dewcooverbaee's case 825, 869 
Deyanath v. Muthoor 686, 792 
Dhadpale v, Uurav .. 587 
Dhaji Himat v. Dhirajram . . 291 
Dhanmull v. Bamchunder . . 288 
Dharam Ghand v. Bhawani . . 854 

— v. Janki .. 625 

— Singh V. Augan Lai . . 402 
Dharani Knat v. Kristo Kumari, 590 
Dhar ma Dag u i;, Bamakrishn a , 184 , 

208 
Dharmadas v, Nistarini . . 536 

Dharmapuram v. Virapandiyam, 801, 

817 
Dharnidhur v. Chin to 246, 253 

Dharup Nath v. Gobind Saran . . 768 
Dhirai v, Mangaram . . 855 

Dhondo v. Balkrishna . . 841 

— V. Ravji .. .. 515 
Dhondu v, Gangabai 720, 826 

— Gurav v, Gangabai . . 29 
Dhoolubh V. Jeeveo. . .. 541 
Dhunookdaree v. Gunput . . 355 
Dhunput V. Gooman . . 524 
Dhurbunga v. Goomar . . 415 
Dhunn Das Pandey v. Mt. Shama 

Soondri .. 240,365,648 

Dhuronidhur Gbose, in re . . 119 
Dialchund v, Eissory . . 540 

Diggavelly v. Goontamoo . . 583 

Digumber v. Moti Lall. 683, 688, 776, 

792 
Dina v. Nathu . . . . 515 

Dinanath v. Aulockmonee . . 513 
Dinesh Ghunder v. Golam Most- 

appa .. 291 

Dinkarv. Appaji .. .. 456 

— V. Ganesh . . 167, 248 
Dinomonee v. Gyrutoolah . . 513 
Dinobundhoo v. Dinonath . . 381 
Divi Virasalingam V. Alatturi .. 117 
Diwan Rau i?. Inderpal . . 590 

— Singh V. Jadho . . 519 

Doe V. Ganpat . . . . 768 



PAGS 

Doe V. Roberts . . . 596 

Dondee v. Suntram .. .. 617 

Donzelle p. Kedarnath ,. 589 

Doobomoyee v.Shama Ghurn . . 246 
Doolar Ghand v. Lalla Ghabeel 464 
Doorasawmy v. Ramamaul . . 761 
Doorga v. Jampa . . . . 381 

— V. Mt. Tejoo . . . . 886 

— V. Poorun . . . . 869 

— Bibee v. Janaki . . 683 

— Persad v. Kesho Persad, 284, 

422 
^ Pershad r. Mt. Rundun, 52, 

672 

— Soonduree v. Gouree- 

persad .. .. 260 

— Sundari v, Surendra 

Keflhav . . 137, 237 
Doorgopershad v. Kesho Pershad, 291 

Doorputtee v. Haradhun . . 362 

Dorasami v, Alirucra . 464 

Dorasinga v. Katama .. 484 

Dosibai r. Ishwardas . . 529 
Douglas r. Gollector of Benares, 853 
Dowlut Kooer v. Burma Deo . . 762 

Debo Misser v. Srinivas 532, 586 

Duke of Bedford v. Goke . . 596 

Dukharam v. Luchmun . . 801 

Dukhina v. Rash Beharee . • 154 

Dulab V. Dwarkanath . . 888 

Dull Singh v. Sundar . . 869 

Dundaya i?. Ghenbasappa . . 520 

Duneshwar v. Doeshunker . . 787 

Durbhunga i^. Goomar 415, 866 

Dugdale, re . . . . 496 

Durgav. Ghanchal.. .. 586 

— Nath V, Ghintamoni . . 868 

— Pranad v, Nawazish . . 489 
Durgapal «. Roopun 264, 267 
Durma v. Goomara . . 450, 650 
Duttnaraen v. Ajeet . . 698 
Dwarkanath v. Gopeenath .. 383 

— V. Denobundoo , 807, 812 

— V. Mahendranath, 807, 

812 

— v. TaraProsunno.. 380 
Dyamonec v. Brindabun . . 391 
Dyamoyee i;. Rasbeharee 158, 197 
Dyaram v. Baee Umba . . 114 

E6HA19CHUND V. Eshorchund . . 540 
Eshan Ghun Jer i^. Nundanoni . . 289 
— V. Nund Goomar, 

382, 472 
Eshan Kishorv. Haris Ghandra. 181, 

285 

Faez Buksh v. Fukeeroodeen . . 690 



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TABLB OF CASB&. 



XXXYU 



PAGE 

Faiz Muhammad v, Muham- 
mad Saeed.. .. 522 

— Ud-din I?. Tincowrie . . 260 
Fakir Chand v. Moti Chand, 399, 430 

— Cauda v Ganji . . 107 

— Muhammad v. Tirumala 

Ghariar .. .. 296 

Fakirapa v. Chanapa . . d78 

— - V, Yellappa . . 732 

Fanendra Deb v. Rajeswar, 59, 135, 

237 
Fanindro v. Juguditthwari . . 433 
Fanuayamma v. Manjaya . . '212 
Farduoji v. Mithibai . . 522 

Fatesangji v. Hurisangji . . 68 

Fatima Bibi v, Debnath . . 284 

Fatma Bibi o. Advooate-General 

of Bombay . . 582 

Fasludeen v. Fakir Mahomed . . 520 
Pegredo v. Mahomed . . 584 

Forbbe v. Meer Mahomed . . 580 

Fattu V. Bhurrut . . . . 584 

Fuzeelun v, Omdah . . 599 

Gaoaduh V, Chandra.. 541, 554. 870 
Gadgeppa v. Apaji 287, 855 

Gajapathy v. Gajapathy, 641, 672,718 

— V. Pusapati . . 758 
Gajendar t;. Sirdar . . . . 672 
Ganapati v. Savitri . 256 
Gandi Maganial v, Bai Jadub, 8*26, 

888,904 
Ganeeh v. Bapu . . . . 289 

— V. Nilkomul . . 784 

— V, Waghu .. ..716 
Ganga t;. Ghasita 759, 771, 904 

" c, Saroda . . . . 381 

— V. Hira . . . . 802 
Gangabaiv. Anant .. .. 268 

— V. Tarabai . . 218 

— V, Vamauaji, 452, 454, 486 
Ganga Baksh v. Jagat . . 509 

— Biitheshar c. Pirthi . . 440 
Gangadaraiya v. Parmeswar- 

amma . . 885, 890 

Ganga Sahai v. Hira . . 208 

— V. Lekhraj, 14, 89, 180, 

181, 201, 202 
Gangaya v. Mahalakshmi . . 874 
Gangbai v, Thavur . . . . 68 

Gangopadhya v. Maheschandra. 875 

— V. Sarbomangala.. 887 

— 17. Sarbmangala . . 899 
Gangubai r. Bamanna 479, 554 
Gangnlu v, Ancba . . 899,464 
(}anpat o. Annaji . . 874, 880, 385 

— Rao V. Ramohander, 525, 848 

— Venkateah v. Gopal .. 639 



PAGE 

G an raj v. Sheozore • • 471, 481 

Gan Savant v. Narayen Dhond. . 291 
Gantapaili v, Yellaooma . . 611 

Garikapati r. Sudam . . 672 

Garurudhwaja v, Saparandhwaja, 61 
Gattia Ram v. Moohita Kochin . . 118, 

119 
Gauri v, Chandramani . . 626 

— V. Gur Sahai.. .. 871 

— V. Rukko . . 703, 715 
Gavdappa v. Girimallappah . . 149 
Gaya v. Raj Bansi . . . . 465 
Genda v. Chater ... . . 585 
Ghansham v. Badiya . . 854 

— V, Govind . . 845 

Gharib Ullah v. Khalak, 274, 284, 
432, 455 
Ghaciti v. Umrao Jan . . 64 

Ghazi v. Sukru . . . . 103 

Ghirdharee i;. Koolahul . . 61 

Girdhar Lai v. Bai Shiv . . 391 

Girdharee Lall v. Eantoo Lall. . 390, 
396, 399, 415, 449, 458, 487 
Girdwurdharee v, Kulahul . . 341 
Girianna v. Houamma . . 615 

Giriappa v. Ningapa . . 223 

Oiri janand v. Sailajanand . . 584 
Giriowa v. Bhimaji 154, 167 

Girish Chunder i;. Abdul Selam. 273 
Girraj Baksh v Kasi Hamed . . 284 
Gnanabhai v, Srinivasa 509, 598 

Gnana Sambandha v, Velu, 583, 564, 
585,586 
Gk)berdhun v. Shamchand . . 564 
Gobind v. Baldeo Singh . . 878 

— V, Dulmeer.. .. 845 

— r. Moheah, 678, 683, 688, 689, 

722, 777, 790 

— Chunder v . Doorgapersad , 867 

— — V. Ram Coomar, 380, 

383 

— Lai V. Hemendra . . 522 

— Krishna v, Abdul Qayyam, 

762, 805 
Gobiudmani «. Shamlal, 852, 874, 

876 
Gobindo v. Woomesh 688, 789 

Gobindonath v. Ramkanay . . 260 
Goburdhon v, Singessur 895, 428 
Gocoolanund v. Wooma Daee, 172, 

185, 761 
Godaveribai v Sagiinabai . . 615 
Oo^unchunder v. Joy Durga • . 871 
Gojabai v. Shrimant . . 895 

Gokebai v, Lakhmidas 614, 618 

Gokool V. Etwaree . . . . 880 

— Nath i;. Is&ur Lochun . . 494, 

495,567,574 



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XXXVlll 



TABLE OF OAS£S. 



PAGE 

Oolab Koonwur v, Collootor of 

Benares .. .. 616,623 

Golak Nath v. Mathura .. 494 

Gollav. Kali .. ..617 

Goluck V, Ohilla . . 623, 626 

— V. Mahomed Rohim . . 850 
Gk)lukmonec v. Rishenpersad . . 873 
Gonda Kooer v. Kooer Oodey . . 844 
Goolab v. Phool . . 563, 712 

Gooroo t?. Kylash . . . . 775 

Gooroo Das v. Saratohunder . . 528 
Gooroobukshv. Lutchmaoa, 837,842, 

869 
Gooroochurn v, Goluckmoney, 357, 

362 
Gooroodoss v. Bejoy . . 383 

Gooroopersad v, Muddun . . 284 

Goorooperbhad v. Rasbehary ..216 

— t'.Reebchunder.. 660, 

838 
Goor Pershad t;. Sheodeen, 428, 431, 

471 
Gooroo va v. Narrainsawmy . . 554 
Gopal V. Dhimgazee . . 756 

— V. Kenaram . . 674, 797 

— V. Krishnappa . . 518 

— I). Mao NagHten .. 380 

— V. Anant v, Narayan . . 138 

— Balkrishua v. ViBhnu, 167,184, 

253 

— Ghand v, Babu Kunwar . . 580 

— Chandra v. Ram Chandra 894 

— Chunder r. Haridas . . 683 

— Dass V. Nurotum . . 59 

— Dutt V. Gopal Lall . . 345 

— Hari v. Ramakant . . 634 

— Narhar V. Banmant, 174,202 

— Prasad u. Raghunath . . 447 

— Rao V. Narasinga 289, 290 

— Sing V. Bhtiekunlal . . 345 
Gopalasami v. Arunachelam, 603,618 
Gopalayyan v. Raghupatiayyan, 10, 

58, 174, 175, 204, 208 
Gopalrav v. Trimbakrav . . 634 

Gopalsami v. Chinnasami . . 350 
Gopaula v. Narraina 822, 850, 869 
Gopee v. Rajkristna 540 

— V, Ryland . . . . 381 

— Kishen v, Hemchunder . . 382 

— Lai V, Mt. Chundraolee . . 144 
Gopeekrist v. Gungapersaud, 368, 436, 

452, 564, 589 
Gopeenath v. Jadoo . . 595 

— V. Kallydoss . . 858 

— V. Ramjeewun, 284, 289 
Gopi V. Markande . . . . 591 

— Chand v. Sujan Kuar . . 876 
Gopikabai v, Dattatraya . . 618 



PAOB 

Gopinath v, Bhagyat . . 598 

Gordaudas v. Harivalubh . . 273 
Gordhandag v. Bai Mancoover . . 496, 
499, 500, 506, 571, 677 
Gosaien v. Mt Kishenmunnee. . 683, 
722, 828, 885 
Gosavi Shivgar v. Rivett-Caranc, 496, 

568 
Gossain v, Bissessur . . 586 

Gossamee v. Ruman Lolijee . . 587 
Gourahkoeri v. Gujadhur . . 273 

Gourbullab V. Juggenoth .. 214 

(}ouree Kanth v. Bhugobutty . . 873 
Goureenath v. Collector of 

Mongbyr .. 455 

— V. Modhoomonee. 62 

Goureepershad v. Mt. Jymala . . 137 
Gourhurree v. Mt. Rutnasuree. . 216 
Gourmouee V. Bamasoonderee.. 274 
Gournath v. Arnapoorna . . 144 

Gouri Shunker v, Maharajah of 

Bulrampore .. .. 358 

Gour Pershad o, Sheodin . . 471 

Government of Bombay v. Ganga,114 
Govind Krishna v. Sakharam . . 395 
Govinda v. Krishnan . . 388 

— V. Lalakishun 592. 596 

— v. Thayammal .. 861 
Govinddas v. Mahalukshumee . . 712 
Govindarabulu v. DevaLobotla . . 610 
Govindayyar v, Dorasami . . 198 
Govindji o. Lakmidas . . 886 
Govindnath v. Gulalchund, 168, 183 
Great Berlin Stenm Boat Co. . . 596 
Greedharee v. Nundkishore, 585, 5^6 
Greeman v. Wahari. . . . 874 
Greender v. Mackintosh . . 426 
Gregsou v, Aditya Deb . . 284 
Gridhari v. Bengal Government, 686, 

688, 724, 781, 800 
Grish Chunder v. Broughton . . 846 
Grose v, Amirtamayi, 843, 873, 876 
Gudadhur v. Ajoodhearam . . 362 
Gudimella v. Venkamma . . 610 

Gujara v. Kandasami . . 801 

Gulabdas v. Collector of Surat. . 358, 

529 
Guman v. Srikant Neogi 723, 780 
Gunesh v. Moheshur . . 61 

— 0. Nil Komul 683, 784 

Ganga v. Jeevee . . . . 616 

Gungadharuduv.Narasammah.. 354 
Gungadhar v, Ayimuddin . . 523 
Guogahurry v. Baffhubram . . 513 
Gungama r. Chendrappa . . 273 

Gunga Mya v. Kishen Kishore, 218, 

828 
Gunganarain v. Bulram 494, 862 



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TABLE OF CASES. 



XXXIX 



PAGE 

Gimgapersad r. Brijessuree . . 218 
Gongo Prosad v. Ajudhia, 844, 345, 

401 

— V. Shumbhoonath .. 707 
Gungaram v. Kallipodo .. 519 

— V. Tappee . . 653 
Gungoo Mull V, Bunseedhur . . 344 
Guni r. Moraii .. .. 381 
Gun Joshee v. Sugoona . . 712 
Gunnappa v. Sankappa . . 138 
Gunput Narain Singh, re . . 117 
Gunraj v. Ablakh . . . . 273 
GoDtur CasA 144, 149, 245. 724 
Gut Dial v. Kaunsila . . 626 
Gurivi Reddy r. Chinnamma . . 554 
Gurlingapa r. Nandapa . . 654 
Guru V. Aaand 678, 681, 683, 688, 

698, 703, 722, 788, 789 

— Dass V. Bijaya 388, 440 

— Gobind r. Aiiand Lai . . 216 

— V. Nafar . . . . 848 
Gurulingappa v. Nandappa . . 480 
Gurulingaswami v, Lakshmappa. 170 
Gurunarain v. Unund . . 61 
Garunath v, Krighnaji . . 841 
Gumsami v. Chinna Mannar . . 394 

— V. Ganapathya 440, 462 
Guruvappa v. Thimma 434, 464 
Gyan v. Dookhurn . . . . 828 

Hadjbe MuBTAPHJi, re . . 538 

Haidar All v. Tassadduk . . 573 

Haji Abdul t;. Munshi Amir . . 577 

— Ismail's Will .. ..68 
Haigh 17. Kaye . . . . 597 
Haiman v, Koomar Gunsheam . . 143, 

203 
Hait Singh v, Dabee Singh . . 366 
Hakeem v. Bee joy . . . . 593 

Hakim Khan r. Gool Khan . . 67 
Hanmant Lakshman v. Jayarao, 287 

— Ramachandrar. Bhima- 

charya.. 188,554 

Hanoman v. Chirai . . . . 187 

— Kamat t?. Dowlut 

Munder . . 400 
Hanumantamma v. Rami Reddy, 224 

Haradhun v. Ram Newaz . . 381 

Harbhaj v, Gumani . . . . 49 

Hardeo Bux v, Jawahir . . 358 

Harendranarayan's goods . . 843 

Harendra Narain i7. Moran . . 284 

Hargobind r. Dharam 603, 746 

Hari r. Mahad%ji . . . . 518 

— r. Narayan . . . . 290 
Haribhat v, t>amodarbhat . . 830 
Haridas v. Prannath . . 668 
0«ri Qobind jp.^kluTy Eudar , . 600 



PAGE 

Hari Gopal v. Gokaldas . . 379 

Harihar v. Uman Pershad . . 522 
Harilal t). Bai Rewa . . 528 

— V, Pranvalabdas 825. 869 

— V, Bai Mani . . 668 
Hari Narayan v. Ganpatrav . . 668 
Hari Saran Moitra v, Bhuba- 

nes^ari 261, 291, 415, 465, 865 
Hari Vithil t;. Jairam 432, 465 

Hari Vydianathayanv. Minakshi. 863 
Harjivan r. Naran . . . . 500 

Harjivandas v. Pranvalabdas, 825,869 
Harman v. Koomar Gunsheam . . 143, 

203 
Hamabh v. MandU, 58, 143, 168, 868 
Har Saran Das v. Nandi . . 755 

Ha room Mahomed, re 68, 453 

Harrinath v. Mohunt Mothoor. . 867 
Harvey, re . . . . 503 

Hasan Jafar v. Mu hammed . . 350 
Hasha i*. Hagho . . . . 515 

HaAsan Ali v. Nagamal . . 175 

Hathi Singh v. Kuverji . . 520 

Haunman v. Baboo Kishen 481, 485 
Hayes v. Harendra 853, 856 

Heera Lall v. Mt. Konsilah . 622 
Hegadi v. Tonga . . . . 127 

Hema Kooeree v. A jooOhya . . 60^5 
Heamanginee v. Jogendro . . 691 
Hemangini Dasi v. Kedernath. . 616, 
650, 839 
— t'. Nobin Cband . . 587 
Hemchund v. Taramunnee . . 857 
Hemchnnder v. Sarnomoyi, 856, 871 

— V. Thakommoni . . 472 

Hemluta r. Goluck Chunder,769, 825 
Hencower v. Hanscower . . 263 

Hendry v. Mutty Lall . . 865 

Herianna V. Oojani.. .. 496 

Himalaya v. Simla Bank . . 520 

Himmatsing r. Ganratsing, 610, 516 
Himnauth Bose, in re . . 277 

Himulta v. Mt. Pudomonee .. 716 
Hirabai v, Lukshmibai 528 

Hiralal v. Parmeswar . . 402 

Hiranath v. Baboo Ram 58, 712, 758 
Hira Singh r. Gunga Sahai . . 806 
Hirabai v. Jan Mahomed .. 500 

Holloway i*. Mahomed . . 383 

— V. Sheikh Wahed . . 883 
Honamma v. Timannabhat, 604, 612, 

804 

Honapa v. Narsapa . . . . 596 

Honniah v. Bhada Setty . . 803 

Honooman v. Bhagbut . . 481 

Hoogly V. Kishanund . . 586 

Hori Dasi r. Secretary of State. . 687 

Hormusji v, Dhanbaiji . . 579 



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xl 



TABLE OP OASES. 



PAGE 

Howard v. Pestonji . . 57, 583 

Huebut Rao v. Govindrav, 176, 187, 

199 
Hujmu Chul V. Ranee Bhadoorun, 100 
Hulodhurv.Georoo.. .. 380 

Hullodhur v. Ramnauth . . 632 

Hunoomanpersaud v. Mt. Ba- 

booee 285. 390. 417. 455, 

460. 852, 853, 862 
Hunsapore, case of the Zemin- 

dary of 62, 358. 438. 446, 558. 
573 
Hunsbutti v. Ishri . . . . 846 

Huradhun v. Muthoranath . . 203 
Hurbojee v. Hurgovind . . 891 

Hur Dyal Nag v. Roy Kristo . . 208 
— Kishore v, Joogal . • 380 

Hurdev Narain v. Rooder Per- 

kash .. 401,407,413,416,485 

Huree Bhaee r. Nythoo 114, 617 
Hureewulubh v. Ke3howrp.m . . 553 
Huri Das Bandopadhya v. Rama 

Churn.. .. 683,789 

Huri Doyal v. Grishchunder . . 887 
HuriBh Ghunder v. Mokhoda . . 671 
Hurkoonwur V. Rutton Baee, 114, 755 
Hurlallv. Jorawan.. .. 633 

Hurodoot V. Beer Narain . . 449 
Huromohun v. Auluckmonee . . 849 
Huro Soondree v. Chundermoney 170 
Hurpurfthad v. Sheo Dyal 58, 350, 
358. 521, 673 
Hurronath Roy v. Rundhir Singh, 457 
Hurrosoondery v. Rajessuree . . 714 
Hurry Churn v. Nimai Chand, 115, 

118 

Hurrydoss r. Rungunmoney, 822, 

841, 842, 872 

— i/. Uppoornah 842. 873 
Hurrymohun v. Gonesh Chunder.864 

— V. Shonatun, 886, 900 
Hurry Bunker v. Kali . . 594 
Hurst V. Museoorie Bank . . 885 
Husenbhoy v. Ahmedbhoy .. 568 
Hussai n Beebee v. Hussain Shenf 585 
Hyde r. Hyde . . . . 69 



IcHHARAM V. Prumanund 



. 563 
611 
768 

I- 

311 
593 
751 
515 
854 
383. 
440 



PAGE 

Inderun r. Itamasawmy 2, 746 

ludromonee v. Suroop 380 

Indromoni v. Behari Lall . . 197 

Indur Chunder v. Radba Kiahore, 287 
Intiaz Oonnissa, inrs . . 283 

Ifihan V. Buksh Ali . . .. 866 

Ishen Chandra v. Ganesh . . 520 
Ishri Singh v. Bulde^i Singh . . 738 
Ishwar Narain v. Janki . . 898 

Ismail V. Fidayat . . . . 61 

iRmal V. Ramji . . . . 636 

Isree Pershad v. Nasib .. 662 

Uri Dut V. Hunsbutti, 843, 846, 846, 

876 

— Sinsh V. Ganga . . 49 
Issar Chunder v. Gopal . . 600 
Isserchunder v. Rasbeharee . . 200 
Issur Chunder v. Ragab . . 292 

— v. Ranee Dossee . . 808 

lyagaree v. Sashamma . . 610 

lyavoo V. Sengen . . 822 

Jaafar V. Aji .. .. 586 

Jado V, Mt. Ranee . . . . 449 

Jadoo V. Eadumbinee . . 380 

Jadoomonee v. Gungadhur, 357, 363 
Jadu V. Sutherland. . . . 380 

Jadnmani v. Kheytra Mohan . . 619 
Jagabai I7. Vijbhookundas . . 420 
Jagadamba v. Dakhina \rohun . . 211 

— V. Camachemma . . 822 
Jagannada v. Papamma . 258 
Jagannath v. Bidyanand .. 801 

— r. Munnu Lai . . 466 

— Prasad V. Ran jit Sinph,27, 

100, 213, 667, 895 
Jaganath Prasad v. Sitaram . 428 
Jagat Narain v. Sheodas 703. 723 
Jagdish V. Shoe Prasad . . 733 

Jagernath v. Jainath . . 380 

Jaggamoni v. Nilmoni 584 

Jaggernat h v. Pershad Surmah . . 686 
Jagindra v. Hemanta 582, 684 

Jagjivandas v. Imdad . . 441 

Jagunnadha v. Konda . . 633 

Jai Bansi v. Chattar . . 587 

— Ram V, Musan Dhaini . . 142 
Jaibhai v. Louip Manoel . . 70 
Jaipal 17. Bhaiya . . . . 877 
Jai ram Luxmon, in re . . 274 

— V. Atmaram .. 668 

— V. Kuverbai . . . . 602 

— Babaja Shet r. Joma 
Kondia .. ..416 

Jalaluddaula v. Samsamuddaula, 

381 
Jallidar v. Ramlal . . 471, 472 

James v, Ijord W^niord • . 609 



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TABIiB OF OASBS. 



zli 



PAGE 

Jamiyatram r. Bai Jamna, 765, 825, 

869 

— V. Parbhndas, 426, 427 
Janina Das v. Bamantar . . 528 

— V. Machal . . . . 629 

— t?. Nain Sukh . . 401 
Jamnabai v. Khimji . . 761 

— V. Raichand, 149, 185. 240 
Jamoona v. Mudden . . 391 
Jamsetji v. Kashinath . . 389 
Jamuna v, Gunga . . . . 482 
Janardhan v. Gopal . . . . 808 
Jankee v, Bukhooree 383, 440 
Janki v. Bhairoii . . . . 890 

— V. Mahadev . . . . 415 

— Bai v. Sundra . . 29,881 

— Dibeh v. Suda Sheo . . 143 

— r. Nandram 345, 607 
Janokee r. Gopaul 185, 685 

— V. Kisto . . 868 
Janokinath v. Muthuranath, 648,654, 

753 
Jannan*8 Estate . . . . 574 

Jasoda v. Shenpershad . . 766 

— Koer r. Shco Perehad, 344, 766 
Jatha Naik v. Venkatappa .. 865 
Javer'iai v. Kablibai . . 507, 522, 566, 

671 
Jawahir v. Gayan . . 344 

Jeebon v Romanath . . 657 

Jeewun v, Ut. Sona 574. 885. 890 
Jeo Lai Sin^b v. Ganga Pershad, 465 
Jethabai v. Girdar . . 517, 520 

Jethea v. Mt. Sbeo . . 716 

Jevnin c Sbab Kuberood-deen . . 582 
Jhabbu V. Ganga Bishen . . 274 

Jbamman v. Tiloki . . . . 867 

Jhobboo V. Khoob Lall . . 654 

Jhnlao, Kanta Prasad ..871 

Jijoyiamba v. Kamaksbi . . 752 

Jivan V. RaiA Govind . . 481 

Jivandas r. Framji . . 518, 521 

Jivani r. Jivu . . 174 

Jiwan V. Misri Lai . . . . 861 

Jodoonath t*. Brojouath . . 650 

Jogdamba Koer r. Secretary of 

State .. ..715 

Jogendra v, Falkamari . . 625 

Jogendro Deb v. Ponindro, 100, 206 

— Nath «. Jugobundhu.. 668 

— u. Niityanand, 361, 750, 

761 

— 17. Nityanand . . 738 

— V. Nobiiichunder, 380 
JogendrcDundini r. Burry Doss, 119 
Jogesh Chandra r. Nritya . . 170 
Jogeswar v, KamchaDd 343, 628 
Jogi Singh v, Behari Singh . . 291 



PAOK 

Jogmunitt;. Seetulpertad .. 722 
Jogul Riahore v. Shib Sahai, 638, 641 
Johar Mai v, Eknath . . 899 

Johurra Bibee v. Strigopal, 433, 6^5 
Jones, in re . . . . 285 

Joogul V. Kalee . . . . 392 

Joshy Assam, in re.. . . 278 

Jotendro 9. Jognl .. .. 866 

Jot hi V. Timma Gowda . . 381 

Jotindra v Bejoy . . . . 678 

Jowahir v Mt. Kailassoo . . 780 

Jowala t<. Dharani . . 66, 67 

Joy Chundro r. Bh > u b Chundro, 145, 

216 

— Deb Snrmah v. Uuroputty . . 685 

— Kishen v. Collector of East 

Burdwan .. 532 

— Narain c. Gtish Chunder . . 673 
Joymonee r. Sibosoondry . . 185, 

190 
Joymooruth v. Buldeo . . 873 

Joytara v. Ramhari . . 628 

Judah V. Judah . . . . 581 

Judoonath v. Bishonath 647, 649 

— V, Bussunt Coomar, 100, 

884, 887, 898, 900 
Judub V. Ben od behari 665, 774 

Jngdeep P. Deendial.. 405,471 

Juggemath v. Kishen Persbad. . 532 

— V. Pershad . . 586 

— V. Odhi ranee . . 623 
Jaggessur v. Roodro . . 585 
Juggodumba r. Haran . . 380 
JugKomohun v. Neemoo . . 493 

— V. Saumcoomar . . 52 
Jnggumath v. Doobo . . 454 
Juggutmohini r. Mt. Sokhee- 

money '. . 582, 587 

Jugjeevun V. Deosnnker .. 850 

Jugmohundasv. Mungaldas, 348, 360 

372, 635, 638 

— V. Pallonjee . . 578 
Jugol Kishore v. Jotindro, 415, 863, 

866 
Jugomohun v Saradamoyee . . 651 
Jugul Kisbori v. Ananda .. 284 

Juraoona v. Bamasoonderai, 140, 141 
144, 206, 871, 875, 877 
Junaruddeen r Nobin Chunder, 56 
Jungee Lall v. Sham Lall . . 289 
Jussoda V. Lallah Nettya . . 273 
Juswant V. Doolee . . . . 266 

Juvav V, Jaki . . 451 

Jwala Dei v. Pitabhu . . 273 

Jye Koonwur r. Bhikari . . 810 

Jymunee v. Ram joy . . 774 

Kaohab v. Bai Rutbore . . 871 



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TABLE OF OASES. 



PAGE 

Kaohi Kaliyana v. Kaohi Yuva, 618, 

789 

Kachu V, Kaohoba . . . . 514 

Kaohwaln v. Sarup Oh and . . 524 

Kadarsa v. Baviah . . . . 517 

Kagal Ganpaya v. Manjappa . . 409 

Ku^aDdas, inre .. . . 591 

Kaihav v. Roop Singh . . 458 

Kailash v. Kashi . . . . 762 

Kaipreto v. Makkaiyil . . 861 

Kaithi v. KuUadasi . . . . 100 

Kalavati v, Chedi Lai . . 889 

Kaleeohund o. Moore . . 856 

Kalee v, Choitun . . . . 472 

— Ohunder v. Sheeb Ohunder, 131 

— Ohnrn v, Bungshee . . 584 

— Pershad v. Bhoirabee . . 721 

— Siinkur v. Denendro • • 648 
Kaleenath v, Doyal Kristo . . 594 
Kalian Rai v. Ramcbunder . . 776 
Kalian v. Sanwal . . . . 578 

~ Singh V, Sanwal Singh . . 876 

Kali V, Dhununjoy . . . . 658 

— Krishna o. Raghnnath, 351 , 739 

Kaliohandra v. Raj KiBhore . . 380 

KaUdas v. Kanhya Lall, 500, 512,516 

— P. Krishan, 639, 655, 656, 677 , 

812, 814 

— V. Nathu BhaflTvan . . 380 
Kalilcharam v. Bungshi . . 582 
Kalka o. Budree .. 657, 810 
Kaliparshad o. Ranicharan . . 638 
Kallapa o. Venkatesh 472, 478 
Kallati v. Palat . . . . 311 
Kalliyani v. Narayana, 467, 500, 862 
Kallu V. KaoBsilia .. ..603 
Kally Ohurn t7. Dukhee 111, 118 

— • Doss «. Gobind . . 593 

— Prosonno v. Gocool Cbunder, 

241, 250, 260 

Kalova v. Padapa . . . . 875 

Kalpagathachi v, Ganapatbi . . 624 

Kalui7. Barsu .. ..479 

— V. Hanmapa . . . . 538 

— V, Kashibai . . . . 609 
Kamakhya v, Rarichurn . . 841 
Kamakshi v. Chidambara . . 648 

— V, Nagarathnam . . 62 
Kamala v. Pitohacootty .. 511 

Kamalakshmi v. Ramasami . . 64 
Kamalam v. Sadagopa 62, 68 

Kamaraju v. Secretary of Sfcate . . 289 
Kamara;su v. Venkatarathnam . . 522 
Kamavadhani v. Joysa, 842, 852, 874 
Kameswar v. Run Bahadoor, 455, 
852,862 
Kamikbaprasad v* Jagadamba. . 838, 

878 



PAOR 

Kamineymoney, goods of . . 904 

Kamini Dossee v, Chandra Pode, 605, 

607 
Kanabi v, Biddya 108, 274 

Kanakaeabbaiya v. Seshaohala.. 474 
KandaBami v. Akkammal . . 871 

— V. Doraisami 667, 669 

— V. Murugammal . . 613 
Kanbaia Lai v. Raj Bahadur .. 402 
Kanhaiya 17. Munni .. .. 579 
Kanhia v. Mabin Lai . . 890 
Kanbya v. Hadha Chum . . 205 
Kannamn^ai V. Viraitami .. 208 
Kaunan v. Nilakanden . . 586 
Kanni i;. Ammakannu . . 756 
Kanno Pisharodi v. Kombi 

Achen . . . . . . 494 

Kanth Narain v. Prem Lall . . 484 
Kantbu v. Vittamma . . 343 

Kanti v. Bisi-esbwar . . 285 

Kanukurty v. Venkataramdass . . 484 
Karamsi v. Karsondas . 238 

Karibassakav Karibassana .. 117 
Karim i*. Heinrichs . . 524 

Kariyaden r. Kayat Beeran, 283, 605 
Karmali t7. Rahimbboy . . 289 

Kamatbaka Hanamantha v. 

Hanumayya .. .. 430 

Karsandas V. Ladkavahu 152,237 
Karuna t7. Jai Chandra 721, 787 

Karunabdhiv. Hatnan>aiyar, 161, 165 
Karuppa v, Kumarasami . . 750 

Karuppai v. Sankara, 844, 767, 895 
Karruppan v. Veriyal 891, 394 

Karupannan v, Bulokam . . 747 

Kasale v. Palaniayi . . . . 551 

Kasee Dhoollubh v. Button Baee, 114 
Kaseram o. Umbaram .. 114 

Kashee v, Gour Kishore . . 885 

— Mohun 17. Raj Gobind . . 687, 
722, 788, 790 
Kasbeepersbad v. Bunseedbur . . 228 
Kashibai v. Tatia 185, 188 

Kasi V. Buchireddi . . . . 391 

Kasim v. Sudindhra . . 584 

Kassee v. Goluckohunder . . 686 

Kastur v. Appa . . . . 399 

Kasturbai v. Shivajiram . . 614 

Katama Natcbiar v. Rajah of 

Shivagunga 115, 205, 351, 358, 
631. 635, 678, 712, 714, 866, 877 
Katchekaleyana v, Kachivijaya, 616 
Kateeran v. Mt. Gendhenee . . 119 
Kathaperumal v. Venkabai . . 753 
Kattama Nachiar v. Dorasinga 

Tevar 762, 765, 828, 880 

Kattusheri V. Vallotil .. 380 

Kaveramma v, Soobroyappa , . 618 



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TABLB of CASBd. 



xliii 



PAGE 

Kedar v. Protab 465 

Kedamath r. Hemangini . . 605 

KeUy «?. Kelly .. ..119 

KenneU v. Abbot . . . . 289 

Kenitnaraen r. Mt. Bhobinesree, 182 
Kery Kolitany v. Moneeram . . 84, 
604. 764 
Kesabram v, Nand Kisbore, 665, 

774 
Kesava v, Uuikkanda . . 602 

Keshadevan v. Vasudevan . . 271 
Keshav Lai v, Parvati . . 119 

— PanduraDg v. Vinayek . . 521 

— RamakrUtna v. Govind 
Ganesh 148, 246 

Kesboor v, Mt. Bamkoonwar . . 581 
Keshow Rao v. Naro 100, dUO 

Keshub v, Vyasmonee . . 594 

Eesserbai i;. Valab 719, 729, 770, 

794 
Kesub v. Bisbnopersaud 677, 721 
Keval Bhagvan v, Ganpati . . 891 
Khadrappa v, Rungappa . . 868 

KbalilaU v. Gobind 895, 401 

Khatu V. Madburam . . 585 

Kbemkor v.Umiasbankar, 64, 608 
Kberodemoney v, Doorgamoney, 501, 

575 
Khetramani v. Kasbinatb, 604, 607 
Khettar v. Pooruo 689, 782 

— Chunder v. Hari Das . . 686 
Kbimji v. Morarji . . . . 506 

Khodabai v, Babdar . . 769 

Kbojah'scase .. 57, 68 

Khoodeeram v. Rookbinee . . 801 
Kboosal V, Bbugwan Motee . . 118 
Kbudiram v, Bonwari . . 274 

Kbuggender V. Sbarapgir ..801 
Kborsadji v, Peatonji . . 601 

Kbtuhal Cband v. Bai Maui, 101, 108 
— V. Mahadevgiri, 581, 

684 
Kbuahali v. Rani . • . . 758 

Kbwabisb v. Surju .. ..272 

Kirpal Narain v. Sukurmoni . . 744 
Kiseiisiogh v. Moresbvar . . 464 

Kishen v. Tarini . . . . 787 

Kisbenatb o. Hurreegobind . . 216 
Kisben Lai v. Garuraddbivaja. . 889 
Kishemnonee v, Oodvnint . . 260 
Kisbuee p. ELbealee. . . . 878 

Kisboree v. Cbammom . . 865 

Kisbori V, Moni Mobon . . 647 

Kishto Soondery v. Kisbto Motee,599 
Risbnndass v. Keaboo Wulud . . 426 
Kissen v. Javallab 688, 687, 788 

Kislnomonee o. CoUeotor of Moor- 

.. 204 



PAGE 

Kisto Moyee v. Prosunno . . 864 

Kodutbi V. Madu . . . . 755 

Koer Hasmat 9. Soonder Dass. . 899, 
487,671 
KoernaraiD v. Dbormidbiu . . 688 
Koilasb v, Saroda . . . . 601 

Kojiyadu v, LAksbmi . . 771 

Kolondayav. Vedamuthu .. 861 
KoUany v. Lucbmee, 525, 574, 848 
Kollury Nagabbusbanam v. Am- 

manna .. 520 

Komala v, Gangadbera . . 451 

Kombi t;. Laksbmi 465, 467 

Kondappa v, Subba. . . . 851 

Kondayya v. Guruvappa . . 519 

Kondiba v. Nana . . . . 520 

Kondi Menon v. Srangiareagatta, 861 
Konerrav 1;. Gurrav • • 686 

Konwur v. Ram Cbunder, 455, 489, 

584 

Kooer Goolab v, Rao Kurun, 724, 729, 

788, 807, 860, 871 

— Odey V. Pbool Obuiid, 845, 846 
Kooldeep v, Bunjeet . . 468 

— V. Government 525, 581 

— V, Rajbunsee . . 274 
Koomarasawmy v. Ragava . . 296 
Koonjbebari v. Premoband, 528, 890 
Koonjee v. Jankee . . . . 594 
Koonwaree v» Damoodbur • • 721 
Koonwur v. Sbama Soonduree.. 472 
Koopookonan v, Obinnayan . . 429 
Koraga v, Reg 65, 127 
Rora Sbunko v. Bebee Munnee 174 
Koroonamoyee v. Gobindnath . . 878 
Koshul V. Radbanath . 862 
Kosuri V. Invaluri . . . . 465 
KoDarbasapa v, Cbanverova . . 890 
Kotomarti v. Vardhanamma . . 875 
Kotta Ramasami v. Bangari • • 859 
Kottala V. Sbangara • • 892 
Koimla V. Ram Uuree . . 498 

— Kant V, Ram Huree . . 582 
Koyilotb v, Puthenpurayil . . 861 
Kripa Sindbu v, Kanbaya . . 862 
Krisbna Aiyan 0. Vytbianatba, 522, 

567 
Krisbnabai v. Kbaugowda . . 648 
Krisbna Panda v. Balaram . . 678 

— o. Paiamsbri . . 185 

— Ramaya v. Vasudev . . 460 

— Rao V. Benabai . . 506 

— V, Bayappa .. 521 

— V. Sami, 688, 666, 677, 816 

— V, Tbambu . . 464 

— V, Subbanna . . 686 

— Kinkurv. Panchuram.. 579 

— — V. Rai Mobun.. 579 



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xliv 



TABLB 09 GA8B8. 



PAOB 

Krishnajit?. Govind.. .. 518 

— V, Pandurang, 27. 29, 772 

— Ijakshman v, Vitbal 

Ravji .. 420 

— Mahadev v. Moro 
Mahadev .. ..856 

Krishnamzna v. Papa . . 746 

— v. Perumal 401, 722 

— V. Suranna . . 519 
Krishanath v. Atmaram . . 503 
Krishnaram v, Mt. Bheekee . . 880 
Krishnaramani v, Ananda, 501, 588, 

563, 566, 582 
Krishnarav v, Sbankarrav . . 150, 

253 

— V. Govind . . 380 
Kriahoa&ami v. Bajahgopala, 346, 348 

— V, Bamasami 423 

— V. Suiidarappaiyar, 284 
Krishnaya o. ChinDaya . . 392 

— V, Piohamma . . 768 
KrishnayeD t. Muttusami, 746, 750 
Kiistayya v, ^arasimhau . . 668 
Kristnappa v, Bamasawmy, 345, 369, 

672 
KristnieDgar v. Vanamamalay . . 175 
Kristo Bhabiney v. Aebutoeh . . 651 
KriBto Gobind v. Hem Chunder, 864 
Kristoromoney v. Norendro, 558,565, 

567 
Eudomee V. Joteeram .. 116 

EuUammal v. Kuppu 780, 886 

Kullar V. Modho Dbyal . . 457 

KuUean V. Eirpa .. ..267 

EuUyaDessureo v. Dwarkanatb. 610 
Euloda r . Jagesbar . . . . 622 

Eumara v, Srinivasa . . 591 

— A&ima v. Kumara 
Erisbna. 563, 564, 570, 574, 582 

Eumaran v. Narayan 91, 93 

Eumar Tarakeswar v. Sboshi, 5C2, 
658, 565, 667 
Eumara8ami v. Ramalinga . . 585 
Eumaravelu u. Virana 730, 770 

Eainla Baboo q, Muneesbunkur, 102 

— V. Gooroo . . . . 492 
Eumulmoney v. Bodbnaraio . . 606 
EumurooddeeD v. Sbaikb Bbadho, 

284, 513 
Euodooiee v. Ballajee . . 517 

Eunbacba «. Eutti Mammi, 311, 348 
Eunbammata r. Eunbi Eutti . . 602 
Eunbya v. Bukbtawar . . 391 

Eunigaratu v. ArrangadeD, 313, 382 
Eimjan v. 8idda . . . . 453 

Euppa V. Dorasami . . . . 586 

— V. Singaravelu 603, 747 

Eupurobund v. Dadabboy . . 424 



PAGE 

Eupoor V, Sevukram 580, 850 

Eurcem v, OoduDg .. .. 776 

Kurreemonissa r. Mobabut . . 598 
EuBum V. Satya 71, 177 

Euta Bully v, Euta Cbudappa. . 674 
Eutti V. Radakristna, 724, 728, 729, 

825 
Euvarji v. Mote Haridas . . 287 

Kuverbai *•. Eablibai . . 502 

Euverji v. Babai . . . . 208 

Eylasb / . Gooroo . . . . 775 

Laoban v. Anant Singb . . 868 

Lacbcbanna v. Bapanamma . . 621 

LacbmaD v. Ak-bar . . . . 58 

— V Debi Prasad .. 356 

— V. EbuuDU . . 391 

— V. Sanwall . . 669 

— V. Patniram .. 598 
Lacbmin v. Eotesbar . . 494 
Lacbbo v. Gopi . . . . 542 
Lacbmi v. Makund . . . . 529 
Lakbamgavda v. Kesbav . . 530 
Lakbi v. Bbairab. 677, 770, 787, 807 
Lakbmi v. Tori . . . . 494 
Lakmi Cband v. Gatto Bai, 168, 175, 

200 
Laksbimoni v. Nittyananda . . 500 
Laksbmaka v. Boggaramana . . 567 
Laksbmana v. Ran gamma . . 586 

— V. Siva . . 756 

— Rau V. Lak^bmi . . 258, 

260 
Laksbmanauimal t;.Tiniveugada,729, 

782 
Laksbmanv. Dipcband .. 519 

— t. Gopal.. .. 670 

— v. Jamuabai . . 356 

— V. Narayan . . 673 

— V. Ramcbandra, 347, 439, 

479, 554, 612, 636, 659 

— V. Sarasvatibai, 621, 626 

— V. Satyabbambai . . 399, 

621,622,624,625 
-. Bbau I? Radbabai,260, 854 

— Venkatesb v. Easbi- 
uatb .. 432 

Laksbmand&B v. Dasrat 516, 518 

Laksbmappa v. Ramappa, 167, 170 

184, 18H, 201, 238 

Laksbmi r. Dada . . . . 720 

— V. Subramanya . . 256 

— V. Tulsi . . . . 807 
Lakshmibai v. Bapuji . . 619 

— V. Ganpat Moroba, 346, 
574, 643, 666, 674, 765, 826,869 

— V. Hirabai 674, 848 
^ V. Jayram 716, 794 



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TABLfi 09 CASKS. 



xlv 



PAGE 

Lakshmibai o. Ragftji . . 146 

— V. Ramchandra, 139, 194 

— r. Shridftr .. 274 
LakRhminarayana v, Dasu . . 849 
Lakshmipati v. Kandasami . . 61 
Lakahmy v, Narasimha 511, 664 
Lala V. Uira . . . . 58 

~ Biswambhar v» Rajaram . . 883 

— Hurro v. Basaruth . . 284 

— Joti V, Mt. Durani . . 770 

— Parbhu Lai v. Mylne, 148» 209, 

212, 415, 855 

— Amarnatb v, Acban Kuar, 456, 

852, 858, 862 

— Muddun Gopal v. KbikbiD- 

daKoer.. .. 350. 808 

— Narain v. Ramanui . . 287 

— Ramjeewan r. Dalkoer . . 522, 

527, 560, 567 

— Suraj v. Golab Cband . . 402 
Lai Babadur v. Sispal . 643 

— Das V. Nekun jo . . 283 

~ Singb V. Deo Narain 400, 462 
LaU 0. Murledar .. ..213 

Lalit Agar r. Suraj .. ..119 

— Mobun V. GbukkaD Lai, 522, 558 
Laljee v. Fakeer . . . . 400 
Laljeet v, Rajcoomar, 637, 647, 668 
LaIJa Sbeo i*. Ramnandau . . 290 
LaUab Rawutb i*. Ghadee . . 285 
Lalla BbagvaD o. Tribbuvan 

Motiram .. .. 391 

— Bunseedbur v. Koonwur 

Bindeseree 284, 462 

— Bvjnatbo. Bissen .. 858 

— Gbuttar v, Mt. Wooma . . 876 

— Futteb V, Mt. Pranputtee. 976 
~ Gobind o. Dowlut^ .. 611 

— Ganpufe V. Mt. Toorun . . 851 

— Mobabeer c. Mt. Kundun, 52 
Lallobhai v. liankuvarbai, 574, 575, 

576, 578, 682. C90, 691. 697, 708, 
708, 715, 717, 720. 721, 729, 794, 
829 
LaU Jha v. Shaikb Juma 472. 654 
Lalla V, Jagmobtin . . . . 523 

Lalti Kaar o. Ganga 439, 485, 606 
Lalabbai v. Bai Amrit . . 515 

Lamb v, Mt. Goviodmoney . . 845 
Leake v. Robinson . . 502 

Lekbraj v. Kunbya 522, 523 

Lekraj Knar u. Mabpal Singb . . 49 

— i;. Mabtab 289,290 
LeJanund v. Government of 

Bengal 532, 633 

Limji r. Bapaji . . . . 582 

Linga v. Goojia . . 119 

Linfflippa v. Eg o daie n .. 608 



PAGE 

Lloyd r. Webb .. ..568 

Lobo V. Brito . . . . 596 

Lochun V. Nemdbaree . . 344 

Lodboomona t7. Gannescbunder. 873 
Lokenatb c. Sbamasoondoree . . 216 
Lokbee v. Kalypuddo . . 592 

Loki V. Agboree .'. . . 464 

Lootfulbuck V. Gopee . . 381 

Lucbmi v, Asman 389, 463 

LucbmuD 17. Kalli Gburn, 593, 885, 

„ , 886 

— V. Kanbya La!l 228 

— V. Giridbur 401, 421 

— r. Mobun . . , . igg 
Luckbee v. Taramonee . . 595 
Luggabf. Trimbuck .. 426 
Lukbee v. Gokool, 574, 849, 857, 862, 

871 
Lukmee v. Umurcbund . . *i73 

Lukmeeram v. Kboosbalee . . 849 
Luileet V. Sreodbur. . . . $78 

Lulloobboy v, Caesibai, 697, 703, 717, 
794, 829 
Lutcbmana Row t?. Terimul Row, 359, 

668 
Lutcbmanen v. Siva Prokasa . . 385 
Lutchmee v. Rookmanee . . 587 

Luximon Row v. Mullar Row . . 364, 

368 

Maccundab t). Ganpatrao . . 669 

Macdonald r. Lalla Sbib . . 494 

McDowell V, Rageva . . 389 

McGrath, in re . . . . 276 

Madan Mobun v. Puran Mull . . 859 
Madari u. Malki .. ,. 871 

Madar Sabib v. dubbarayulu . . 521 
Madavarayya v. Tritba Bami . . 869 
Madbavram i*. Dave Trimbak . . 826 
Madbavrav v. Atmaram 350, 633 

— ». Balkrisbna . . 61 

— V. Dave Trimbaklal, 829 

— V. Gangabai . . 617 
Madbo V, Kamta . . . . 586 

— Persbad v, Mebrban . . 481 

— — V. Mebrban 

Singb .. 483 

Madbowrao v, YuBwuda . . 647 
Madhab Cbunder v. Bama- 

sooodree .. 495 

— «. Gobind .. .. ai5 
Mababalayav. Timaya .. 473 
Mababeer Persad v. Ramyad, 482, 647 
Mahabir Persbad ik Adbikary . . 868 

— — V, Moheswar 

Natb, 405, 420 

— Prawad v, Basdeo Sing, 389, 

422 



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xlvi 



tTABLB O^ GASB& 



Mahableshvar v. Durgabai 
Mahadaji v. Vittil Ballal 
Mahadev v. Lakshman 

— V, Rayaji.. 
Maha<)evi v. Vikrama 



PAGE 

.. 165 
. 697 
,. 644 
.. 259 
. 582 
Mahalakabmamma v. Venkata- 

ratnamma . . * • 624 

Mahalinga v. Mariammah . . 702 
Mahamed Arif v. Saraswati 
Debya.. .. ..287 

Maharajulungaru v, Rajab Row 
Pantalu .. ..359 

Mabarani v. Nanda Lai . . 878 

Mabasboya Sbosinatb v. Srimati 

Krisbna 194, 198, 200 

Mabatab v. Mirdad . . . . 584 

Mabesbar Bakbb v. Ratan Singb, 455, 

461 
Mabesb Partab v. Dirgpal . . 617 
Mabesbwarv. Koonj Bebaree.. 462 
Maboda v. Kuleani . . . . 778 

Mabomed v. Ganapaiibi 534, 585 

— V, Uofiseini Bibi, 500, 512 

— V. Krisbnan .. 871 

— Sidiok V. Hajl Abmed, 68 

— V. Sakatwat .. 284 

— Abba, Will of .. 578 
Mabunt Qovind v. Sitaram . . 858 
Mailatbi v. Subbaraya . . 55 
Majidan o. Rau Narain . . 285 
Makbul v. Srimati Masnad . . 284 
Makundi v. Surabsukb 462, 485 
Malapa v. Narasamma . . 209 
Malikarjuoa v, Durga Prasad .. 61, 

619. 668 
Malkarjun v. Narbari . . 211 

Mallesam v, Jagala • . 895 

Malli Reddy v. Padmamma . . 269 
Mallikarjuna v. Durga, 616, 619, 685, 

668 
Ma Me Gali v. Ma Sa Yi . . 267 

Mammaii v. Pakki . . . . 814 

Manasing v. Abmed. . . . 569 

Man Baee v. Krisbnee . . 558 

— Bbariv. Nauniab .. 500 

Mancbaram v, Pransbanker . . 585, 

586 
Mancbarji v, Kongseoo . . 593 

Mangala v, Dinanatb 826, 626 

Mangaldas v. Krisbnabai . . 566 

— V, Tribboovandas .. 506 
Manik Cband v. Jagat Set&ani, 56, 

150,168 
Manickobunder v. Bbuggobutty, 186, 

189 
Manika v. Ellappa .. 623 

ManikamuUa v, Parbuttee . . 260 
Manilal v, Baitara . • . . 627 



PAGE 

Manila! v. Bai Bewa . . 836, 899, 903 
Manisbankar v. Bai Muli . . 284 
Manjammav. Padmanabbayya. . 506 

— V. Sbesbgiri . . 64 
Manjanatba v. Narayana . . 640 
Manji Ram v, Tara Singb . . 284 
Maniunadbaya v. Tangamma . . 500 
Mankoonwur v. Bbugoo . . 712 
Manmatbav. Ropilli .. 871 
Manning v. Gill .. .. 596 
Manobar Das v. Manzar All . . 380 
Manobar Ganesb v, Lakbmiram, 582, 

587 

Manorama v. Kalicbaran 571, 574 

Marappa v Rangasami . . 485 

Marl V, Gbiunammal . . 770 

— V. Jivamma 62, 171 
Marudamatbu v. Srinivasa . . 860 
Maruti v, Runa . . 670 

— Narayan v. Lilacband . . 432, 

464,472 

— V. Bbabaji .. ..416 
Mata V. Bbageerutbee i • • 855 
Matangini i\ Jaykali . . 804 

— V. Jogendro . . 611 

— Gupta V, Ram Rutton 
Roy .. .. ..756 

Matbura v. Esu 57, 68, 263, 658 

— v. Ramcbandra . . 401 
Mayna Bai v, Uttaram . . 761 
Mayor of Lyons v, Advocate- 
General of Bengal 574, 587 

Meenatcbee v. Cbetumbra, 357, 451, 
646,661 
Meenaksbi Naidoo v, Immudika- 

naka .. .. 405,409,420 

Mebdee v. Aujud . . . . 383 

Meberoonissa v, Hur Cburn . . 599 
Melaram v, Tbanooram . . 107 

Melgirappa v, Sbivapa 850, 862 

Merangi Zamindar v, Satrucbarla, 62 
Meyajee v, Metba . . . . 501 

Mbalsabai v. Vitboba .187 

Mibirwanjee v, Poonjea . . H09 

Miller v. Runganatb . . 463 

Minaksbi v, Cbinnappa . . 622 

— V. Ramanada 173, 174 

— c/. Virappa .. 460 
Mirali Rabimbboy v. Rebmoobboy, 

291 
Mir Azmat v. Mabmood . . 119 

— Mabomed v. Kisbori . . 698 
Mirza Jeban v. Badsboo Baboo, 368 

— V. NawabAfsur 
Babu .. 368 

— . Pana v. Saiad Sadik, 287 

Mitta Kuntb v. Neemnjun . . 686 
Mittibbayi V. Kottekorati .. 283 



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TABLE OF OASES. 



xlvii 



PAGE 

Modhoo Dyal v, Kolbur 454, 485 

— Kooeryv. TekaitRam.. 533 
Modhoosoodhon v. Jadub Ohan- 

der .. 108 

- V, Prithee Bullab. 289 

— V. Rooke . . 858 
Modun Mohun t7. Futturanniesa 514 
Mohabeer Kooer v, Joobha, 847, 456 
Mohadeay u. Haruknarain, 649, 841 
Mohanand v. Nafur . . 235 
Mohanchand v. Isakbhai . . 383 
Mohandas v, Krishnabai, 686, 784 

795 
MohcDdra Nath v. Kali Prosad. . 600 
Mohendro Lall v. Rookinny . . 145 
Mohosh Chunder v, Satnighan . . 733, 

742 

— V. Chunder Mohun . . 806 

— V. Koylash . . 687 

— V. Ugra . . 861 

— Narain v. Taruck Nath, 187 

211 

Mohima i;. Ham Eishore, 853, 863 

Mohori v. Dharmodas, 207, 208. 283, 

288,289 

Mohun V. Lulchmun . . 587 

— V, Siroomunee . . 857 

— Geer v. Mt. Tota . . 615 

— Pershad v. Ki*ihen 

Kishore .. 896 

— Singh V, Chaman Rai . . 93 
Mohnnt v. Busgeet . . 856 

— Bhagabun r. Roghonun- 

dun 139, 808 

~ Burm r. Khasha 534, 585 

— Gopal V. Kerparam . . 586 
Mokhoda v. Nundo Lai . . 604 
Mokoond Lai v. Nobodip, 275, 278 
Mokoondo v Gonesh 568, 657 
Mokrund Deb v. Ranee Bissessuree, 

273 
Mokundo fh Bykunt . . 214 

Mondakini v. Adinath . . 151, 

240 
Monee Mohun v. Dhun Monee . . 715 
Moniram v. Kerry Kolitany . . 612 
Monmohini v. Banga . . 579 

Mon Mohinee v, Baluck . . 609 

Moodookrishna v. Tandavaroy . . 273 
Mookta Keshee v. Oomabutty . . 671 
Moolchund v. Krishna . . 389 

Moolji Lillat?. Gokuldas .. 368 

Moonea v. Dhurma . . 780 

Moore, re . . 496 

Moothia v, Uppen . . 174 

Mootoopermall v, Tondaven . . 296 
HooiooTiaia Raghoonadha Satoo- 
puity t7. Sevagamy Nachiar, 182 



PAGE 

Moottia Moodelly i;. Uppon . . 229 
Moottoo Coomarappa v, Hinno.. 432 

— Meenatchy v, Villoo . . 585 
Moottoosamy v, Lutohmeeda- 

vuminah . . 170, 174 

Mootoovencata v. Munarsawmy, 633 
Mootoovengada v. Toombaya- 

samy 545, 638, 640 

Moreshwar v. Dattu 519, 520 

Mt)rice v. Bp. of Durham . . 574 
Moro Narayan v. Balaji . . 260 

— Vishvanath «. Ganesh, 882, 337, 

638 670 
Morrison, r« .. 239 

Morun Moee v. Bejoy 175, 218 

Motee Lall v. Bhoop'Singh . . 875 

— V. Mitterjeet 440, 493 
Mothoormohun V. Surendro •• 272 
Motilal V. Kashi . . 619 

Moulvi Muhammed v. Mt. Fatima 

Bibi .. 485 

— Mahomed Shumsool v. 
Shewukram, 526, 573, 574, 848, 

876, 879 

— Sayyud v, Mt. Bebee . . 589 
Mrinamoyi v. Jogodishuri . . 289 
Mrinmoyoe r. Bhoobunmoyee . . 875 
Mt. Battas v. Laohman Singh . . 176 

— Bhugobutty v. Chowdhry 

Bbolanath .. 259 

— Dullabh r. Manu . . 182 

— Tara Munee v. Dev Narayun, 

143. 170, 259 

— Pearee i7. Mt. Hurbunsee . . 153 

— Roopna v. Ray Reotee . . 481 

— Ruliyat v. Madkowjee . . 102 

— Solukna r. Ramdolal, 137, 144, 

677. 765 

— Subudra v. Goluknath . . 153 

— Sunder v, Mt. Parbati, 758, 841 

— Thakoor v. Rai Baluk Ram, 100. 

825, 868 

— Thakro v. Gauga Pershad . . 590 

— Thukrain Sookraj v, the Gov- 

ernment .. .. 850 

Muckleston v. Brown . . 696 

Muddun Gopal v. Mt. Gowrun- 

butty, 899, 654 

— t?. RamBuksh.. 347, 

352, 452. 486, 490 

— Thakoor V. Kan too Lai, 403, 

408, 416, 417, 418, 463 
Mudhoobun v. Huri . . 801 

Mudit 1'. Ranglal 438, 673 

Muhalukmee v. Kripashookul . . 580 
Muhammad Abdul v. Kutul 

Husain .. 417 

•— Afzul r. Ghulaiu . . 62 



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xlviii 



TABLE OP GASBS. 



PAGE 

Muhammad Husain v. Dipohand, 416 

— Imam v. Sardar 

Husain . . 49 

— Mumtaz v. 8heorat- 

tanjir .. 290 
Muha^unkur v, Mt. Oottum, 110, 114 

Muhtaboo v, Gunesh . . 273 

Muiavar ?;. Hussain . . 586 

Mukunda Lai v. Leharanz . . 630 

Mukkanni r. Manan Bhatta . . 496 

Mulbai, in the Qoodfl of . . 68 

Mulohand v. Bhudea . . 103 

Mulhana v. Alibog . . 519 

Mulji Baifthanker v. Bai Ujaoi.. 615 

— V, Curtandas . . 7*iO 

— Thakeney v. Gomti . . 117 
Mulka Jahan v. Deputy Commis- 
sioner of Lucknow . . 358 

Mulkah Do v. Mirsa J**han . . 5^ 
Mulrause Venkata v. Mulrauzo 

Lutohmiah 543, 548 

— V. Chellakany 544, 548 
Mulraz v, Chalekany 453, 548 
Munda Ghetty v. Timmaju, 312, 702 
Mungniram t;. Mohunt Qur8ahai,272, 

290, 291 
Munia i;. Paran . . 886 

Muniappa v, Kasturi 296, 207 

Munnoo v. Gopee . . 540 

Huppidi Papaya v. Ramaya . . 441 
Murari v. Mukund Shivaji, 369, 671 

— V. Tayana . . 284 
Murarji v. Parvatibai 806, 808 
Murar Rao v. Sitaram . . 473 
Mnrugayi v. Viramakati 115, 755 
Musadee v. Meerza . . 591 
Muteeoollah v. Aadhabinode,852,853, 

857.861 
Mukhayya v. Minakshi . . 228 

Muthoora v. Bootun 400, 454, 457 
Muthu Meenakshi v. Chendra 

Sekhara .. 528 

Muthura v, Brikhanmal . . 528 

Muthusami v. Nallakulantha . . 669 

— V. Sunambechu . . 686 
Muttammal v. Kamakshy. 604, 612 

— V. Veuaalakshmi . . 770 
Muttayan Chetti v, Sanj^ili, 344. 353, 

393, 396, 414 
Mutteeram v, Oopaul, 489, 849, 878 
Muitia V. Virammal . . 622 

Muttu V. Annavaiyangar . 551 

— Ramalinga v. Perranaya- 

gum .. 585 

— Vadaganadba t^ Periasami, 

789,768 

— Vaduganadha v. Dorasinga 

Tevar, 62, 360, 765, 828 



PAOE 

Mnttu Vizia v, Dorasinga Tevar. 10 
Muttukannn v. Paramasami, 62, 263 
MutCumaram v. Lakshmi, 440, 451 
MuttuBami o, Muttu Kumara- 

sami 786 

Muttusamy r. yonkata8ubha,608,746 
Muttusawmy V. Vencateswara.. 616 
Muttufivami v. Subbiramaniya . . 381, 

686 
Muttuvelayudu v. Parasakti . . 806 
Myna Boyee «. Ootaram, 59, 72, 751 

Nabakumar v. Bhabasundari . . 854 
Nagabhuf^hanam v. Seshamma . 138 
Nagalinga v. Vellusamy . . 637 

— 17. Subbiramaniya . . 637 
Nagaiingam v. Ramchendra, 347, 348 
Nagalutchmee v. Gopoo, 450 453 541, 

548 
Nagalutcbmy v. Nadaraja . . 546 
Nagamma v. Virabadbra . . 613 

Nagappa v. Subba Sastry . . 138 

Nagesh v. Gururao . . 765 

Nagiubhai v. Abdulla . . 589 

Nahalchand v. Bai Shiva . . 886 

— V, Hemchand 716, 794 
Naigalinga v, Vaidilinga . . 780 

Naikram v. Soorjubuns . . 871 

Najban V. Chand Bibi .. 524 

Nam Khan v. Imtiae . . 383 

Nallanna o. Ponna) . . 730 

Nallappa v, Balammal . . 643 

Nallatambi v. Mukunda .. 436 

Nallayappa v. Ambalavana . . 584 
Nalliappa v. Ibrahim . . 519 

Namasevayam t7. Annamal . . 102 
Nam Narain v, Ramoon . . 587 

Nanabhai v. Achratbai 344, 348 

— V. Janardhan . . 101 

— V. Nathabai . . 668 

— V. Shriman Goswami . 585 
Nanack v. Teluokdye . . 517 
Nanamah V. Ramiah .. 151 
Nana Narain v. Uuree Punth . . 452 
Nana Tooljaram v. Wulubdas . . 471 
Nandi Singh v. Sitaram . . 503 
Nandkishore v. Ahmed .. 600 
Nanee v. Allarakia . . 62 
Nani Dibeo v. HafizuUah . . 520 
Nanjammani v. Deva . . 241 
Nanji v. Kaliani . . 891 
Nanomi Babuasin v. Modhun 

Mohun 347, 409, 416, 420 

Naraganti v. Vencatacbulapati . 360, 

736, 739 

Naragunty v. Veugama 364, 616 

Narain p. Brindabun . . 586 

— t^. Lgienatb 445, 493 



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TABLE OF CASES. 



xlix 



PAGE 

Narain Mullick r. Badi Koy . . 533 

— Chander t?. Daiaram . . 620, 

534 

— Dhara v, Kakhal 107, 744 

— Mai V. Kooer Narain . . 259 
Narainee o. Hurkishor .. 770 
Namnah v. Savoobhady . . 258 
Naraini Kuar V. Chan di Din .. 692 
Naranamaiya v. Vasteva . . 8(53 
Naranappa v. Lakshmi . . 825 
Naranbhai t7. Ranchod .. 380 
Narasanunal v. Balaramacharlu, 57, 

174 

Narasanna v. Gangu . . 751 

— r. Ourappa .. 411 
Narasayya v. Venkayya 828, 904 

— V. Venkataghiri .. 530 
Karasimha v. Gopala . . 585 

— V. Ramcbandra .. 667 

— 17. Venkatadri .. 869 
Narasimharav v. Antaji . . 391 
Narasimnia r. Anantba . . 586 

— V. Mangammal . . 730 

— c. Veerabadhra, 268, 343, 

628 
Narasimmiah v. Narasaya . . 457 
Narasimulu v. Somanna . . 519 

Narayan r. Bapu . . . . 516 

— V. Chintaman 533, 584 

— V. Qovinda .. 314 

— V. Krishna . . 590 

— V. Lakshmi 669, 713 

— V, Laving . . . . 64 

— V. Nanu Manohur, 167, 202, 

668,669 

— w. Pandurang , . 668 

— V. Rajaram . . 472 

— V, Vasudeo .. 633 

— w. Venkatachariya .. 389 
Narayana v, Chengalamma . . 358 

-1 V. Narso . . . . 399 

— V. Ranga . . . . 586 

— V. Kayappa . . 432 

— V. Vedachala . . 138 
Narayanasami v. Esa . . 579 

— r. Kuppusami . . 170, 

186 

— p. Ramasami . . 256 

— V. Samidas . . 390 
Nazayanen r. Kannen . . 496 
Narayan! v. Govinda . . 314 
Narayan rao r. Ramabai .. 619 
Narbadabai v. Mahadev 619, 629 
Narhar Govind v. Narayan . . 172 
Narindcr v. Achal . . . . 742 
Narotam o. Nanka . . . . 886 
Narottam v. NarBandas, 453, 553, 554 
Narraina v. Veeraraghava . . 672 

Q 



PAOB 

.. 826 

,. 428 

. 207 

. 395 

. 523 

. 509 



Narsappa i;. Sakharam 
Narsinbbat v. Chenapa 
Narsingdos v. Rabimanbai 
Narsingh v, Lalji 

— V. Ram Narain 
Nasir o. Mata 
Natasayyan v. Ponnusami, 389, 893, 

421 
Natchiarammal v, Gopalakrishna 625 
Natefivayyau v. Narasunmayyar, 291 
Natba v. Jamni . . . . 864 

Nathaji v. Hari . . 183, 184 

Nathibai, in the Goods of ..99 
Nathu v. Chadi .. ..488 

Nathuni v. Manraj . . . . 879 

Nathuram v. Bhoma Chhagan . . 284 
Natthu V. Gulab . . . . 212 

Naugammah v. Korebasappah . . 806 
Navalram v. Nandkishor 830, 834 
Nawab v. Bhugwan . . . . 688 

— Syud Ashrufooddeen v. 

mt. Shama Soonderee. . 284 

— V. Ummatul Zohra . . 600 
Nayamani v. Deva . . . . 241 
Neelkaunt v. Anundmoyee . . 14o 

— V. Munee .. 659 
Neelkisto Deb v. Beerchnnder . . 61, 

359, 364, 672, 678, 739, 772 
Nehalo v. Kishen . . . . 754 

Nellaikumaru v. Maragath- 

ammal .. .. 848 

Nemychum Mullick's will . . 640 
Newton, in re . . . . 277 

Nhanee v. Hureeram . . 389 

Nidhee v, Bisso . . . . 693 

Nidhoomani v. Saroda Pershad . . 236 
Nilakunden i\ Madhaven . . 888 

Nilamani v. Radhamani . . 762 

Nilmadhub v, Bishumber . . 186 

— V. Narattam . . 496 
Nilmoney r. Baneshur . . 609 
Nilmoni c. Bakranath, 532, 533, 633 

— V. Umanath . . 679 

— Singh V. Bakranath . . 441 
Nilmony v. Kally Chum . . 876 

— Singh V. Hingoo . . 616 
Nimbalkar v, Jayavantrav 164, 184 
Ningareddi v, Lakahmawa . . 604 
Nirmul v. Mahomed . . 690 
Nirvanaya v. Nirvanaya . . 284 
Nissar v. Kowar . . . . 750 
Nistarini v. Makhanlal . . 622 
Nilai Charan v. Ganga . . 667 
Nilratan v, Ismail . . . . 623 
Nitradayee v, Bbolanath . . 182 
Nittianand v. Krishna Dyal, 197, 204 
Nittokissoree o. Jogendro 616, 617 
Nittyanund v, Shama Chum . . 613 



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TABLE OF CASES. 



PAGE 

Nitye v. Soondaree . . . . 614 

Nizamuddin v. An and a . . 487 

Nobin Ghunder v. Dokbobala . . 590 
Nobinchunder v. Guru Persad.. 867, 

877 
Nobin bunder v. Mobesb Gbun- 
der .. .. ..383 

Nobinkishory v. Gobind . . 875 

Nobkissen's will . . . . 540 

Noboki^ore v. Harinath . . 859 

Nogendro v. Benoy 582, 904 

Norendra t7. Bhupendra . . 465 

Norendranath o. Kamilbasini . . 559 
Nowbut 17. Mt. Lad Kooer . . 117 
Nowrutton v. Baboo Gouree . . 456 
Nnbkissen v. Hnrrisbchunder . . 568, 
585, 667 
Nubkoomar v. Jye Deo . . 381 

Nubokishen v. Kaleepersad . . 284 
Nuddea, caee of Zemindar of, 491, 540 
Nufur V, Ram Koomar . . 825 

Nugender Cbunder v. Kaminee 

DoBsee . . . . 407, 853, 863 

Nimd Coomar Lall v. Buzziood- 

deen .. .. 342,344 

Nundkomar v. Bugboonundun . . 857 
Nundlal v. Bolakee . . . . 873 

— V. Tapeedas . . 101 
Nundram v, Kasbee Pande, 186, 480 
Nundun 17. Tayler .. ..593 

— V.Lloyd .. 379,382 
Nun joondappa v. Jobbaiya . . 886 
Nunnu Meab i;. Kri8bra8ami,524, 848 
Nursing r. Mobunt . . . . 500 

— Das V. Narain Das . . 366 

— Deb V. Roy Koylasnaih. 525 
Nuthoo V. Chadi . . 431, 488 
Nuzeerum v, Moulvie Ameerood- 

deen .. .. .. 866 

Nuzvid, case of the Zemindary of, 62 

Obhoy 17. Punchanun 590, 593 

— Cbunder v. Pearee, 375, 376, 

878 
Obhoycbum v. Gobind Ghunder. 369 
— v. Treelochun . . 594 

Obunnessurree v, Kishen . . 56 

Ojoodihya v. Ramsarun . . 452 

Omrit V. Luokhee Narain . . 678 
Ondy Eadaron v. Aroonachella. • 204 
Oodoy V, Dhunmonee . . 876 

Oodoychurn's case . . . . 790 

Ooman Dut v. Kunhia 172, 265 

Oor cad , case of the Zemindary of, 57 
Oorhyakooer v. Rajoo Nye . . 776 
Oosulmoney v, Sagormoney . . 871 



Padaratb r. Rajaram 



482 



PAGE 

Padapa v. Swamirao . . 533 

Padmaker Vinayek v, Mahadev 

Krishna .. ..291 

Padmamani v. Jagadamba . . 668 
Padmavati, ex parte . . 64 

Pahaladh v- Mt. Lucbmunbutty, 667 
Pahlwan v. Ram Bharose . . 597 
Paigi V, Sheonarrain . . 119 

Pakhandu v. Manki . . 119 

Palani Oouuden v. Rangayya .. 402 

— Ronan v. Marakonan . . 472 
Palanivelappa r. Mannaru • . 475 
Palaniyappa r. Arumugam . . 591 
Panchanadayenc.Nilakandayen, 634 
Panchappa v. Sanganbasawa . . 167 
Panchcowrie v, Ghumsoolall . • 587 
Pandaiya Talaver v. Puli Talaver, 

107, 745, 751 
Pandit Ram Narraiu v, Moulvi 

Muhammad .. .. 589 

Pandurang v. Bhasker 471, 472 

Papamma v, Appa Row 170, 183 

Param v, Lalji . . . . 595 

Paramasiva v, Krishna . . 379 

Parameswaram v. Shungaran . . 380 
Paran Ghundia v. Karunamayi . . 287 
Parasara v, Rangaraja, 145, 158, 165, 

776 
Paras Ram v. Sherjit . . 383 

Parbati v, Jagadis Ghunder, 55, 359 

— n. Ram Barun . . 574 

— V, Sundar . . . . 174 
Parbhu Lai v. Mylne . . 212 
Pareraan v. Bhattu l^fahton . . 389 
Pareshmani v. Dinanath 806, 814 
Pareyasami v, Saluckai Tevar . . 464 
Parichat v. Zalim . . . . 450 
Parmaya v. Sonde . . . . 517 
Parmeshar Das v, Bela . . 291 
Parooma v. Valayooda . . 879 
Parot V. Mehta . . 697, 785 
Parsotam v, Datgir .. 594 
Parvati v, Bhiku • . . . 754 

— t7. Ganpatrao 467, 603 

— V. Kumaran 125, 602 

— V. RamakrJshna . . 209 

— u. Saminada .. 212 

— V, Sundara . . . . 525 

— V. Tirumalai 668, 750 
Patel Vandravan v. Manilal, 141, 165, 

167, 237, 248 
Pathan Alikhan v. Panibai . . 27*^ 
Patil Hari v. Hakam Chand, 467, 473 
Patni Mai v. Hay Manohar, 669, 713 
Pattaravy 17. Audimula .. 668 

Pauliem Valloo v. Pauliem 

Sooryah . . 356, 438 

Payappa v. Appanna 149, 252 



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TABLE OF CASES. 



li 



PAOE 

Payaih v, Thirnthipalli . . 369 

Pearks v, Mosley . . . . 502 

Peddamattu v. Appu Rau . . 715 
Peddamutfeulaty v. N. Timma 

Reddy 207, 475, 563 

Pedda Ramappa v. Bangari . . 783 
Peddayav. Ramalinga 318, 475 

Pedru V, Domingo . . . . 368 

Peefe Koonwar v. Cbuttur . . 587 
Pern Singh v. Partab Singh . . 421 
Perhlad Sein v. Baboo Budboo. . 511 
Peria Amman i v. Krishnasami . . 169 
Periasami o. Periasami, 851, 525, 681, 
678, 713, 787 

— V, Seetharama . . 421 
Periya Ghtondan v, Tirumala . . 862 
Perkash v, Ramesbwar . . 522 

— Chunder v, Dhim 
Monnee .. 197, 204 

Pennaol Naicken v. Pottee 

Ammal .. .. 185 

Permeswar v. Padmanand . . 523 
Pershad v. Mubesree . . 743 

Perlab v. Cbitpal Singh . . 456 

— V. Subbao . . . . 573 

— Narain t*. Trilokinath, 866, 877 
Peru Nayar v, Ayyappan . . 314 
Petambur v. Hurish Chunder . • 665 
Petam Dass v, Ramdhone . . 386 
Pettachi Ohetty v. Sangili Vira. . 40 i, 

414, 417 

Phate V. Damodar . . 582, 587 

PhoolbaaKooer v. Lall Juggessur, 380, 

481, 485, 865 

Phoolchund v. Rugboobuns, 489, 854, 

878 
Phukari;. Ranjit .. ..825 

Pbulchand r. Man Singh . . 400 

Phundo V, Jangi Nath . . 176 

Pichuvayyan v. Sabbayyan . . 182 
Pirthee Singh v, Mt. Sheo . . 56 
— V. Rani Rajkooer, 615, 

619 
Pirthi Pal c. Jewahir Singh .. 358 
Pitam V. Ujagar . . . . 344 

Pittapar case, 58, 214, 236, 256, 447, 

555 
Plalamone v. Staple . . 596 

Pokermoll's ^oods .. .. 848 

Pokhnarain v. Mt. Seesphool . . 764 
Poii V. Narotnm . . . . 761 

Ponambilath Kunbamod v. 

Ponambilath Kuttiath . . 314 

Ponnambalao. Sunderappayya.. 449 

Ponnappa v, Pappuvayyangar . . 391, 

393, 394, 396, 399, 401, 436, 

454 
Ponnaya v. Muttu Gouuden . . 511 



Ponnusami v. Dorasami 

— 17. Thatha 
Poonjea v. Prankoonwur 
Poovatbay v. Peroomal 
Prag DaB v. Hari Kishn 



PAGE 

. 69 

. 476 

. 830 

. 640 

. 852 



Pranjeevandas 9. Dewcooverbaee, 825, 

869 
Pran jiyan v. Bai Reva . . 768 

Prankissen v, Bhugwatee . . 887 

— V. Noyanmoney . . 887 
Prankisben v, Mothooramohun . . 674 
Prankrishna v. Biswambhar . . 513 
Prankristo v, Bhagerutee . . 857 

Prannath v. Calishunkur . . 498 

— V. Surrut 683,689 
Pran Nath v. Rajah Govind . . 677 
Pranputtee v. Mt. Poom . . 876 
Pranputty v, Lallah Futteh . . 874 
Pranvullubb v. Deooristin, 228, 391 
Pratabnarayan v. Court of Ward8,440 
Prawnkissen v, Muttoosoondery, 650 
Prayag Doss v. Tirumala . . 587 
Premchand v. Hulashchand . . 609 
Prithee Singh v. Court of Wards. . 56, 

774 
Pritkoer v. Mahadev 332, 364 

Promada v. Srigobind . . 523 

Promotho v. Radhika, 567, 575, 582 
Prosonno v. Barbosa . . 622 

Prosunnomoyeev.Ramsoouder.. 256 
Prosunno v. Golab . . . . 584 

— V. Gooroo Churn . . 599 

— V. Saroda 634, 585 

— D. Tarrucknath, 574, 575, 

890 

— V. Tripoora . . 876 
Protap Narain v. Court of Wards, 440 
Pubitra v. Damoodur 525, 848 
PuddoKumaroev. Juggutkishore, 82, 

147, 216 
— Monee v. D warkanath , 844 , 846 
Pudma Coomari v. Court of Wards, 

147, 217 



Pudmanabiah v. Moonemmah 
Pudmanand v. Hayes 
Pudmavatai v. Baboo Doolar . . 
Pullen V. Ramalinga 
Punchanun Mullick v. Sib Chun 

der 
Punchanund v. Lalsban 
Punchoomaney v. Troyluckoo . . 
Punna v, Radhakissen 
Puran Dai v. Jai Narain 
Puma Chandra v, Sarojini, 
Purikbeet v. Radha Kisben 
Purmanund v. Oomakunt 
Purmessur v, Mt. Goolbee 
Purshotam v, Bai Mani 



611 
523 
712 




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iii 



TABLE OF CASES. 



PAGE 

Porshotam V. Purshotam .. 117 
Piirsid V, Honooman . . 647 

Paraut t?. Pasut 867, 876 

Purtab Bahaudurv. Tilukdharee, 363 
Parashottam v. Atmaram . . 666 
Putanvitil Teyan v. Putanvitil 

Bagavan .. .. 604 

Pydigintam v. Bamadofis . . 533 



R. V. Bezonji 


.. 275 


— t;. Fletcher 


.. 283 


— V, Barnardo 


.. 277 


— V, Gyngal 


.. 277 


— w.JaiU 


.. 64 


— V, Rarsan 


64, 114 


— V, Manhatha 


.. 611 


— V, Manobar 


.. 64 


— V. Marimuttu 


.. 604 


— t;. Nesbitt 


.. 276 


— V. Ramanna 


.. 64 


— V, Sambhu 


.. 114 



Babutty v, Sibchunder, 525, 574, 843, 

848 
Baohava v. EaliDgapa . . 717 

Rachawa v. Shivayogapa . . 62*2 

Raokhaldoss v. Bindoo . . 593 

Radha v, Biseshur 885, 887 

— Chum V. Kripa 369, 669 

— Kishen v. Bachhaman . . 465 

— Mohun V. Ram Dasa . . 873 

— Pearee V. Doorga Monee.. 722 

— Pershadt?. BudhuDashad, 532 

— — V, Ramkhetawan, 415 

— Proahad V. Esuf ..381 

— Shyan v. Joy Ram . . 860 
Radhabai v. Anantray 441, 533 

— V. Anantrao Bhagvant, 533 
V. Chinnaji . . 687 

— V. Ganesh.. .. 673 

— V, Nanarav . , 348 
Radhabullubh v. Juggutchunder, 585 

— Tagore v, Gopee- 
mohun Tagore . . . . 581 

Radhamohun v, Girdhareelal . . 853 

— 0. Hardai Bibi, 37, 187, 

188 
Radhamonee o, JadubDarain . . 256 
Radhi,re .. ..866 

Ragayendra p. Jayaram . . 104 

Raghober v. Mt. Tulashee . . 825 
Raghubanand v. Sadha Churn . . 224 
Ragbubans o. Bhagwant . . 619 

Raghuber Dyal v. Bhikya Lai . . 200 
Ragbunadha t;. Brozo Kisboro . . 11, 
134, 159, 203, 241, 266, 263, 815 
Raghunath v. Gobind . . 580 

— 0. Munan .. 782 

— V. Thakuh . . 871 



PAGE 

Raghunandana v. Gopeeoath . . 895 
Raghupati v. Tiruuialai . . 871 

Raghunada v. Chiunappa . . 586 

Rahi V. Govind, 114, 6C3, 745, 747, 

748 
Rahimatbai v. Hirbai . . 68 

Rahimbai, in the Goods of . . 68 
Rai Balkishen v. Sitaram . . 431 

— Balkrishnac'.Mt. Masuma 284 

— Bishen Ohand v. Asmaida 

Koer 426, 504, 509 

Raicharan v, Pyari Mani . . 871 

Rai Jadav v, Mathura . . 188 

— Kishori i;. Debendranath . . 503 

— Narain v. Nownit . . 471 

— Nursingh v. Rai Naraic . . 358 

— ShamBullubbv. PL-ankibhen, 715 
Raja V. Subbara} a . . 224 
Rajagopal v. Muttupalem . . 289 
Raja Row Boocbc v. Venkata 

Neeladry .. 611 

— Vurmah t;. Ravi Vurmah, 65, 
532, 586 
Rajajee r. Parthasarthi . . 525 

Rajanv. Basuva Chetti .. 207 

Rajani Kanth v. Ram Nath . . 654 
Rajaram v. Ganesh 509, 586 

— V. Narasinga . . 623 

— Tewary v. Luchmun . . 380, 

440, 449. 452, 484, 488 
Raj Bahadur v. Achumbit Lai.. 211 

— — u. Bishen Dyal . . 12 

— Ballubh V. Oomesh . . 856 
Rajbulubh v. Mt. Buneta . . 493 
Rajchunder v. Goculchund, 66, 780, 

787 

— V. Mt. Dhunmunee, 760 

— V. Sheeshoo . . 850 

— V, Bulloram . . 861 
Raj Coomar v. Bissessur . . 176 
Rajcoomaree v. Gopal . . 632 
Rajender v. Sham Chund, 567, 668, 

657 
Rajendro Narain v. Saroda, 141, 188. 

203 

— Nath r. Jogendro Nath, 204, 

206, 209 

-— V. Shama Churn . . 383 

Rajkishen v. Ramjoy . . 60 

Rajkishore v. Gobind . . 797 

— V. Gobind Chunder . . 774 
Raj Kisboro v. HurroRoondery . . 715 
Raj keen wareo v, Golabee . . 754 
Rajkristo v. Kishoroe, 204, 260, 858 
Raj Lukhce v. Gokulchunder, 574, 

849, 857, 862 
Rajnarain v. Ashutosh . . 628 

— V. Heeralal . . 335 



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TABLE OF CASES. 



liii 



PAGE 

Rajnarain v. Jugunnath .. 594 

— V. Kaiyayaoi . . 528 
Bajo Nimbalkar v, Jayavantrav, 184, 

187 

Rakhal r. Adwyta .. iiOO 

— r. Mahtab .. ..381 

Bakhmabai r. Radhabai, 152,166,241, 

247 
RaEoa V. Baoga . . . . 849 

Bam Aufear v. Danauri . . 519 

— V. Raja Muhammad, 290 
Bamabai <7. Rangrav .. 875 

— r. Trimbak. 606, 610, 617 
Ramacharya v. Ananta . . G68 
Ramachendra v. Kondayya . . 423 
Bamacheiidriah v. Seetaramiah, 415 
Bamadhin r. Mathura Singh . . 857 
Bamakkal t;. Ramasami . . 753 
Bamakrishna v. Subbakka . . 269 
Ramakutti v, Kallaturaiyan . . 474 
Ramalakshmi v. Sivananthai ,57, 733 
Ramalinga v. Pavadai . . 751 

— V. Sadasiva 140, 174 
Ramalingam v. Vythilingam, 584, 586 
BamomaDi v. Kulanthai . . 107 
Ramamirlhi v. Gopala . . 499 
Bamamirthen v. Rianganathan 522 
RamaDaden v. Rangammal . . 627 
Ramanand v. Gobind Singh . . 481 

— V. Surgiani . . 770 
Ramananda v. Baikishori . . 758 
Ramanarsu r, Buchamma . . 604 
Ramanayya v. Rangappayya . . 429 
Rumangavda i-. Shlvaji . . 105 
Ramanna v, Venkata 345, 476 
Bamanuja v. Sadagopa .. 599 
Ramanooja v. Peetayen . . 296 
Ramanugra r. Maha^undur .. 591 
Ramanuja v. Virappa . . 380 
Bamanund r. Baghunath . . 358 

— V. Bamkissen, 581, 852, 

855 
Ramappa v. Araganath 683, 730 

Bamappa r. Sithammal . . 751 

Ramaraja v. Arunachella . . 516 

Bama Bau v. Baja Eiau . . 207 

Bamasamayyan v. Virasami, 402, 421 
Bamasami v. Marimuttu ..511 

— V. Papaya ,. 524 

— V. Sellattammal . . 856 

— V. Sunderalingasanii, 224, 

733 

— r. Ulaganatha .. 396 

— V. Venkatesam . . 799 

— tj. Virasami . . 885 
Eamaaamyt;. Sashachella .. 474 
BamasaHhiem v. Akylandummal, 869 
Bamasawmi v. Vencataramaiyan, 257 



PAGE 

Bamasesbaiya v. Bhagavat . . 348 
Bamaswami lyen v. Bhagaty 

Ammal 159, 183 

Rama Varma v. Ramen Nair .. 586 
Ram.ayya v. Venkataratnam . . 381 
Rambhat v. Lakshman 259, 450 
— V. Timmayya . . 117 

Rambromo v. Kaminco . . 56 

Ram Bunsee r. Soobh Koonwaree, 
101, 273, 274 

— Bhuroscc v. Bissessur . . 599 
Ram Chandra v. Narayan . . 213 

— V. Ran jit Singh.. 212 
Bamchandra v. Bhimrav . . 853 

— V. Brojonath . , 274 

— V. Damodar 382, 671 

— V. Kashinath 534, 586 

— V. Krishna . . 619 

— V. Mahadev, 439 631, 

637 

— V. Mulji . . 1G5 

— V. Nanaji . . 172 

— V. Sagunabai . . 615 

— V. Sakharam .. 610 

— r. Savitribai 622 

— V. Venkatrao, 529, 633 

— V. Vithoba . . 188 
Bamchunder v. Haridas . . 868 
Bamchurn v.Nunboo . . 850 
Bam Chum v, Mungul . . 289 
Ramchurun v. Mt. Jasoda . . 626 
Ramcoomar v. Ichamoyi, 607, 850, 

855 

— V, McQueen . . 693 
Ram Coomar v. Jogender • . 584 
Ramdan.v. Beharee . . 705 
Ram Da« v. Chandra . . 55 
Ramdebul i-. Mitterjeet 382, 494 
Hamdhone v. Anund . . 657 
Ramdhun r. Kishenkanth .. 766 
Ramdolal *;. Joymoney 887, 889 
Raman Menon v. Chabunni .. '312 
Ramcshar V. Arjun.. .. 524 
Rameshwar v. Lachmi 574, 576 
Rameswar v. Jibender . . 524 
Ram Ghulam v. Ram Behari . . 364 
Bamguttee v* Eristo . . 666 
Bam Hureo u. Trikee Bam . . 674 
Bamiah v. Nayannammah . . 615 
Bamien v. Condummal . . 610 
Bamindur v. Boopnarain . . 594 
Bamji v. Ghaman, 148, 166, 167, 248, 

251 
Ramjoy v. Taracbund . . 768 

Ramkishen v. Mt. Sri Mutee, 154, 241, 
260, 450 
Bamkisher v. Bhoobun 182, 493 

Bamklshore v. Kallykantoo ..866 



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liv 



TABLE OF CASES. 



PAGE 

Ramkoomar v. KishoDkunker . . 491 
Ramkrishna v. Shamrao 150, 258 
Ramkunhaee v. Bung Ghund . . 498 
Ramkunwar v. Bam Dai . . 6*24 

Ram Kannye v, Meernomoyee. . 752 

— Rawal 17. Ramkishore . . 850 

— Khelawan o. Mt. Oudh . . 514 

— Kissen v. Sheonundun . . 672 

— Kumari, re .. .. 108 

— Koonwar v, Ummur . . 715 

— Lai V. Seorebarv of State . . 522, 

658, 877 

— — v. Lakhmichand . . 386 

— — Sett V. Kanai Lall, 605, 675 

— — V. Kishen . . 694 

— Lochuu V. Runghoobur . . 668 
Ramlinga v. Virupakshi .. 658 
Ramnad Case, 27, 28, 29, 80, 88, 68, 

62, 143, 152, 247 

Ramnath v. Durga 758, 759 

Ram Narain v. Bhawani . . 465 

— . V, Pearay Bhugal . . 523 

— Singh V. Pertum Singh . . 332, 

335, 345 

— Narayun v. Mt. Sut Bunsee, 495 

— Nirunjun v. Prayag . . 659 

— Oottum V. Oomesh . . 426 
Ramnundun v. Janki 62, 752 
Hampershad v. Ghaineram . . 838 ' 

— V. Jhokoo Roy . . 876 I 

— V. Mt. Nagbungshee, ; 

862 I 

— V. Sheochurn, 348, 350, i 

365, 712 
Ram Pershad v, Lakhpati .. 673 
Rampertab v. Foolibai . . 284 

— V. Gopeekishen . . 425 
Ramphul Rat v. Tula Kuari . . 859 

— Singh u.Deg Narain. 399, 

401, 421 
Rampiari v. Mulchand . . 753 

Ramprasad v. Radhaprasad . . 346 
Ramrao v. Yeshvantrao . . 684 

Ramsahoy v. Mohabeer . . 463 

Ram Sahye v. Lalla Laljee, 482, 664, 

807 

— Saran v. Tek Chand . . 761 

— Sarun v. Mt. Pran Peary . , 695 

— Sarup V. Mt. Bela . . 496 

— — 1?. Shah Latifat . . 29 

— Sevak v, Raghubar . . 466 
Ramsoonderv. Anundnath . . 594 

— V, Ram Sahye . . 482 
Ram Soondur v. Taruck . . 585 
Ram Soondur v. Surbanee Dossee, 

148, 248 
Ramtonoo v. Ramgopal 581,582 
Ramtoonoo o, Ramgopaul 641, 547 



PAGE 

Ran Bijai v, Jagatpal . . 806 

Ranga Aiyar v. Srinivasa . . 590 

Rangachariarv.Yegna Dikshatur, 

685 

Raugaiyan v. Kaliani . . 610 

Rangammal v. Echammal . . 605, 

607.609 

— V, Venkatachary . . 5% 

Ranganayakamma v, Alwar Setti, 

161, 153, 194, 198 
Ranganmani v, Kasinath . . 376 

Rangarao v. Rajagopala . . 289 

Rangasami v. Krishnayan . . 480 
Rangayaua v. Qanapa . . 478 

Rangayya v. Thanikachalla, 433, 808 
Rangilbai v. Vinayak . . 851 

Rango Balaji v. Mudieppa . . 239 

— Vinayak v. Yamunabai, 614, 

619 
Rangubai v, Bhagirthibai, 170, 171, 
187, 202 
Raniit v. Hadha Rani . . 756 

Ranmal v. Vadilal 284, 285. 286 

Ranojee v. Kandojee . . 750 

Rao Balwant v. Kishori, 41, 450, 463 
— Kurun v. Nawab Mahomed. 862, 

873 
Raol Gorain v. Teza Gorain . . 335 
Rarichan v. Perachi 122, 712, 717 
Rashid v. Sherbanoo . . 423 

Rashishuri v. GreeshChunder.. 220 
Rashmohini v. Umesh . . 642 

Rasnl Jehuu v. Ram Sarun . . 767 
Rathnam v. Sivasubramaniya . . 439 
Ratna Subbu v. Ponnappa. 686, 688 
Ratnam r. Govindarajulu . . 466 
Ratnamasari v. Akiiandammal, 212, 

218 
Raujkisno V. Taraneychurn .. 492 
Ravji V. Gangadharbhat . . 484 

— V, Lakshmibai, 139, 149, 199, 

208,257 

— V. Mahadev . . 600 
Rawut Urjun v. Rawut Ghunsiam, 61 
Rayacharlu v. Venkataramaniah, 

437, 439, 476 
Rayadur Nallatambi v. Mukunda.344 
Rayakkal v. Subbanna . . 440 

Rayan v, Kuppanayyangar .. 228 



Rayappa v. AH Sahib . . 391 

Rayee »'. Puddum . . . . 662 

Razabai ?•. Sadu . . . . 627 

Ueado ». Krishna .. 272,277 

Reasut v. Abbot . . . . 687 

— 17. Ghorwar . . . . 380 

Reg. r, Bhungee . . 277 

— v. Sooku . . 277 

Reneau v. Tourangeau . . 496 



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PAGE 

Bengasami v. Krishnaiyan . . 480 
Bennie v. Gunganarain . . 593 

Beotee r. Ramjeet . . 464 

Retoo V, Lalljee. 484, 871 

Rewa Prasad v. Deo Dutt .. 710 
Bewun Persad v. Badha Beeby . . 564, 
669. 671. 718, 714 
Bhamdhoue v. Anund . . 657 

Bindabai t?. Anacharya . . 634 

Bindamma v. Venkataramappa . 753 
Bithcam v, Soojun • . 183 

Bivett Camac v, Jivibai . . 847 

Bohee v. Dindyal . . 591 

Bojo Moyee v. Troylukho. 501 . 506, 
582. 871 
Roma Nath v. Bajonimoni. 604, 613 
Boman Kai^sin v. Uurrobai . . 290 
Rooder v. Sumboo . . 774 

Bookbor/Madho .. 521 

Boopchurn v. Anund . . 686 

BooploU 17. Mobiina . . 575 

Rosa Leannouth, Will of . . 578 

Roshan r. Bui want .. 603 

— Singh V. Har Risban . . 284 

— t?. Bulwant, 641. 743 
Rottala V. Pulicat Ramasami, 399,476 
Rouebun v. Ck)ll. of MymeDsingb.594 
Rudr V. Rup Kuar . . 890 
Rudra Prokasb v Bbolanath . . 273 
Radrapa v. Irava, 719. 720 
Raghonath r. Hurrebor . . 733 
Rugboonath r. Luckun . . 654 
Rukabai v. Gandabai . . 618 
Rukhmabai v. Tukbaram . . 794 
Rukkini r. Kadaniatb ..791 
Roklal r. Chunilal .. 223 
Rumea v, Bbagec , . 762 
Runocbordas v, Paryatibai, 674, 867, 

876 
Rungama v, Atcbama. 80. 142, 452 
Runganaigum v. Namasevoya . . 175 
Ranganayakamma v. Bulli Ra- 

maya . . 351, 036, 737 

RoDJeetv. Kooer .. 2/24,672 

— V. Mahomed Waris . . 850 

— Singh V, Obhya 174, 265 
Rupan V. Hukmi . . 766 
Rupa Jagshet v. Krishnaji . . 681 
Rupohund r. Daolatrav . . 519 

— V, Latu Chowdhry •. 67 
» r. Rakhmabai 167, 248 

Rup Singh V. Baisni .. 712 

— V. Pirbhu Narain . . 447 
Rossic 17. Purnah • . 758 
Bussick 17. Choiiun . . 640 
Russobai v, Zuleekabai . . 770 
Rustam AH 17. Abbasi . . 49 

_ Singh 0. Moti . . 852 



PAGE 

Rutcheputty v. Rajunder, 30, 56 686, 

692. 731. 778 

Rutton Monce t*. Brojo Mohun. . 668 

Ruve Bhudrv. Roopshunker, 175,259, 

762 
Ryrappen Numbiar t;. Kelu Kurap, 

311 

Sabapati 17. Somasundaram, 450, 488 
Sabapaty v. Panyandy . . 509 

Sabltreea t\ Sutn r Ghun, 196, 203 
Sabo Bewa v. Nubogbun . . 204 

Sacaram v Luxumabai . . 457 

Sacbitananda 17. Baloram .. 599 
Sadabart Prasad t7. Foolbaah 

Koer 335, 428, 468, 481, 864 

Sadagopah v. Ruthna . . 517 

Sadaahiv i7. Dhakubai, 484, 488, 489, 

861, 863, 879 

— 17. Hari Monosbwar, 184, 

208 

— Dinkar v. Dinkar Na- 

rayen, 399, 401 

Saduv. Baiza, 642, 745, 748, 749, 761 

— r. Ram . . 667 

Saguna 17. SadaFhiv, 720, 769, 778, 

786 
Saithri, in re ., 278 

Sakbaram v, Devji . . 432 

— V. Govind . . 391 

— 17. Hari Krishna, 669, 673 

— 17. Sitabai 29, 720, 826 

— Shet t. Sitaram Shet. 411 
Sakhawat v. Trilok . . 493 
Sakrabi t7. Maganlal .. 384 
Sakwarbai Bbavanjee . . 619 
Sakyahani v. Bhavini . . 878 
Saleboonissa 17. Mobesh . . 391 
Salemma i7. Lukemana . . 889 
Salish Cbunder r. Mohendro .. 273 
Salitagai: 17. Bai Suraj . . 119 
Salur Zemindar v. Pedda Paker. 626 
Samalbbai v. Someabvar . . 463 
Sam at v, Amra . . 778 
Sambasiven v. Kristnien . . 284 
Sami Ayyengar i7. Ponnammal. . 401 
Saminada v, Thangatbanai . . 766 
Saminadicn v, Durmarajien . . 496 
Saminatba 17. Purosbottama .. 584 

— V. Rangatbammal . . 6*22 
Saminathaiyanv. Saminathaiyan. 296 
Samy Josyen t7. Ramien . . 650 
Sandial v. Maitland . . 574 
Sanjivi v. Jalajakshi . . 64 
Sankaralingam r. Subban. 64. 115 
Sankarappa v. Kamayya . . 598 
Sannyasi i7. Salur . . 532 
Santappayya v, Rangappayya . . 208 



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Ivi 



TABLE OF CASES. 



PAGE 

Sant Kumar v. Deo Saran . . 766 

— V. Sukh Nidhan . . 876 
Sarada r. Mahananda 348, 365 
Sardar Muhammad v. Nawab 

Ghulam .. 733 

Saral Chund v. Mohun . . 288 

Sarasuti v. Mannu . . 746 

Sarat Chandra v, Bhupendra . . 678 

— Chunder v. Gopal Chunder, 208 
Saravana r. Muttayi, 467, 462, 464 
Sarju Parshad v. Bir Bhaddar . . 693 
Sarkies v, Prosonnomoyee . . 69 
Sarkum v. Bahaman . . 586 
Saroda v. Tincowry . . 144 
Sartajkuari v. Deoraj . . 738 
Sartaj Kuari t;. Hani Deoraj, 266,446 

656 
Sarupi i7. Mukh Bam . . 69 

Sastri v. Vengu Ammal . . 766 

Sathianama v. Saravana, 634, 684 
Satrapa u. Hulas ..677 

Satrucherla v. Virabadhra, 636, 676 
Savitri v. Raman . . 380 

Savitribai v. Luximibai, 604, 606, 609. 

618 
Sayed Shahu v. Hapija . . 273 

Sayamalal v. Saudamini,139, 151, 196 
Secretary of State v. Haibatrao, 685, 

686 
Seebkisto v. East India Co. . . 521 
Seedee Nazecr v. Ojoodhya . . 663 
Seenevullala v. Tungama . . 752 

Seeta Ram v. Fukeer . . 787 

— V. Juggoobundhu . . 204 
Sellam v. Chinnammal 753, 754 
Sengamalathammal v. Valayuda,762, 

828, 887 
Seehamma v. Subbarayudu . . 619 
Seshayya v. Narasamma . . 528 

Seth Jaidial v. Seth Siteeram . . 368 

— Mulchand v. Bai Manoha, . 890 
Sethnrama v. Ponnammal . . 696 
Sevacsawmy v. Vaneyummal . . 646 
Sevachetumbara v. Parasucty . . 139, 

666,807 
Sha Chamanlal v. Doahi, 641, 870 
Shadi V. Anup . . 888 

Shaik Moosa v. Shaik ERsa . . 678 
Shama Soonducee v. Jumoona, 871, 

873 
Shamachurn v. Khettromoni . . 542 
Shamanna v, Appamma . . 764 

Shamavahoo v. Dwarkadas, 163,237 
Shamchunder v. Narayni 144, 216 
Shamlal v. Banna . . 623 

Sham Chand Pal v. Protab . . 239 
— Narain v. Court of Wards, 360, 

797 



Sham Narain v. Raghoobur 

— Kuar V. Gaya 

— — V. Mohanunda 

— Lai V. Biudo 

— — V. Ghasita 



PAGE 

.. 346 

. 218 

,. 274 

,. 275 

,. 291 



Lall Mitra v, Amarendro, 696, 
856 

— Singh V. Mt. Umraotce . . 440, 

499 

— Singh r. Santabai 140,171 

— Sunder v. Achan, 433, 857, 801, 

862 
Shangara v. Krishnen . . 598 

Shankar Baksh v. Hardeo Baksh,350, 

686 
— Bharati r. Yen kappa Naik, 

584 
Shank aran v. Kesavan . . 197 

Shunmaun v. Madras Building 

Co. .. 516 

Sharifa v. Munekhan . . 275 

Sharfudin v. Govind 515, 620 

Sheik Ibrahim v. Sheik Suleman, 501 
Sheikh Azeemooddeen v. Moon- 

shee Athur . . 292 

— Mahomed v. Amarchand. 684 

— Muhumed v. Zuabida 

Jan .. 500 

Shekh Sultan v. Sbekh Ajmodin, 529 
Shenkapa v, Revana . . 101 

Sheobarot v. Bhagwati . . 768 

Sheo Buksh v. Putteh . . 659 

— Churn v. Chukraree . . 379 

— — r. Junmiun .. 481 

— Das V. Kunwul 493, 501 

— Dyal V. Judoonath . . 363 

— Gobindr. Sham Narain .. 352 

— Golani 17. Burra . . 866 

— Lochun Singh v. Babu 

— Sahcb Singh . . 846 

— Narain v. Mata Prasad . . 697 

— Nath V. Mt. Dayamyee . . 803 

— Persad v. Leelah 383, 440 

— Pershad v. Rally Dass . . 523 

— v.Kulunder .. 858 

— v. Rajkuniar .. 415 

— V. Saheb Lai . . 433 

— V, Soorjbunsce . . 463 

— Pertab V. Allahabad Bank, 826, 

820. 887, 902 

— Proshad v, Jung Bahadur. . Jj93 

— Shanker v, Debi Sahai. 825, 

826, 887, 901 
Sheoraj i7. Nuckhedee, 466, 468, 463 
Sheoratan v. Ram Pergash . . 587 
Sheoshanker v. Ram Shewak . . 455 
Sheo Singh r. Mt. Dakho, 46, 52, 134. 
168, 17ft, 648, 712. 868 



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TABLE OF OASES. 



Ivii 



PAGE 

Shoo Soondary v. Pirthee . . 774 

— Suhaye i*. Sroekishen . . 481 

— Surrun v. Sheo Sohai . . 481 

— Sehai v. Omed . . 768 
Sheogiri v. Girewa . . . . 750 
Sbewak v, Syad Mohammed . . 876 
Shibnarain r. Bam Nidhee . . 773 
Shibo Koeree v. Joogua 266, 266 
Shib Pershad v. Gangamonee, 357, 

648 

— Dayee o. Doorga Pershad, 437, 

618 

— Pershad v. Ganga Monee . . 648 
Shida v. Sunshidapa .. 62 
Shidhojirav v. Naikojirav 57, 634 
Shimbhu Nath v. Gayan Ohand, 57, 

868 
Shia Golam r. Baran . . 366 

Shivaganga, The case of, 205, 351, 
358,631.635,678,712,713.866,877 
Shivagunga Case . . . . 738 

Shivji r. Data . . . . 272 

Shivram v. Genu . . 516. 519 

— V. Saya . . . . 519 

Shome Shankar v. Kajendra . . 750 
Shookmoy v. Monohari, 565, 567, 570 
Shofihi r. Tarokessur . . 565 

Shridhar V. Hiralal.. ;. 102 

Shri Ganesh v. Keshavrav . . 584 
Shadanund v, Bonomalee, 345, 374, 
439,848 
Shumsher v, Dilraj . . 143, 185 

Shamsool v. Shewakram. 526. 573, 
574, 848, 876, 879 
Shamt V, Bholanath . . 489 

Shashee Mohun v. Aukhil . . 367 
Sibbosoondery v. Bussomutty, 650, 

652 
Sibchunder p. Rassick . . 517 

— 0. Sreemucty Tree- 
poorah •• ., 765 

Sibta V, Badri .. ..768 

Sidapa v. Pooneakooty . . 366 

Siddah d. Doddannah ..119 

Siddappah n, Mooneappah . . 606 
Siddessary v, Jauardan . . 614 

Siddhessur o. Sham Chand . . 875 
Sid Dasi r. Gur Sahai .. 857 

Sidlingapa v. Sidava 602, 610 

Sikher Chund v. Dulputty, 456. 462 
Sikki o. Venoatasamy .. 604 

Simbha Nath p. Golab Sincrh . . 401. 
411, 416. 417 
Simmani v. Muttammal . . 761. 

197 
Singamma v, Venkatacharlu 194, 197 
Sinamraal v. Administrator- 
General .. .. 714 



PAGE 

Sivaya V. Mnnisami.. .. 287 

Sinthayee v, Thanakapudayen . . 604, 

612 
Sital 17. Madho . . . . 452 

Sitaram t*. Chintamani . . 794 

— V, Zalim Singh . . 389 
Sitaramayya v. Venkatramanna, 389 
Sitarambhat v. Sitaram . . 586 
Sittiramiyer v. Alagri . . 296 
Sivabhaghiam v, Palani . . 864 
Sivagiri, The case of, 344, 353, 390. 

393, 396, 414 

— V. Alwar . . . . 430 

— V. Tiravengada . . 393 
Sivagunga v. Lakshmana . . 344 
Sivananan ja v. Mattu Bamalinga 57 
Sivarama v. Bagavan . . 98 
Slvasami v. Sevugan . . 454 
Sivasankara v. Parvati . . 463 
Sivasubramaniav. Krishnammal, 447 
Sivasungu v. Minal . . 62, 751 
Skinner v. Orde . . 69, 274, 276 
Sobhagchand v. Bhaichand . . 517 
Sobhanadri v. Sriramula . . 285 

— V. Venkata .. 530 

Sobharamv. Gunga.. .. 380 

Soiru V. Narayan . . . . 460 

Sokkanadha v. Sokkanadha . . 384 
Somasekhara v. Subadra Maji . . 170 
Soualaxmi v. Vishnu . . Ill 

Sonatun v. Ruttun . . . . 56 

— Bysaok t>, Juggutsoon- 
dree, 556, 565, 568. 569, 582. 584. 

629, 672 
Sonet V. Mirza .. .. 800 

Sonu V. Dhondu . . . . 284 

Soobba Moodelly v. Auchalay . . 760 
Soobappa v, Venkamma . . 755 

Soobbaputten v. Jungameeah . . 449 
Soobheddar v. Boloram . . 365 

Soobramaneya v, Aroomooga . . 586 
Soonder Narain i;. Bennad Ram, 284 
Soondur Koomaree v. Gudadhur, 203 
Sooranamy v, Vencataroyen . . 760 
Sooranany v, Sooranany . . 544 

Soorendro v. Nundnn 455, 456 

Soorendronath v, Mt. Heeramonee, 56, 
678, 715 
Soorja Koer r. Natha Baksh . . 623 
Soorjeemonev Dossee v, Deno- 

bundo, 336,362, 370, 371, 373, 374. 

495, 557. 565, 573. 653, 843, 844 

Soorjomonee v, Suddanund . . 345 

Sootrogun v. Sabitra 194. 196 

Sorolah Dossee v. Bhoobun 

Mohun Neoghy .. ..839 

Soshi Bhusan v. Gogan Ohunder, 877 
Soudaminey v. Broughton . . 846 



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Iviii 



TABLE OP CASES. 



PAGE 

Soudaminey v. Jogosh, 501, 502, 575, 

648 
Soarindra v, Siromoni . . 140 

Sowdamineev. Adm,-Ge-i., Bengal. 

«43, 845 
8ree Chand v. Nim Chan^ . . 880 
Sreemanchunder v, Gopaul- 

ohunder . . . . 590 

Sreo Mi«aer v. Crowdy . . 381 

— Motee Jeeinoney «. Attaram, 651 

Sreemutty Debia v. Bimola . . 595 

— Rajcoomarree v. Nobo- 
coomer . . 153, 234 

Sreenarain r. Bbya Jba, 266,267,541, 
869, 896 

— r. Gooro Perehad . . 803 

— Mitter v. Sreemuttv 

Kishen 196, 200 

— r. Sreemutty . . 875 
Sreenatb Gangooly v. Mobesh 

Chunder .. 210 

— Royv. Ruttunmulla.. 260, 

853 
Sreenevassien v, Sashyummal . . 182 
Sreeram v. Puddomookee . . 618 
Sreeramalu v. Kristnamma . . 261 
Srikant Surma v. Radba Kant, 264, 

266 

Srimobim v, McGregor . . 658 

Srimutty Dibeab v. Rany Koond, 686, 

692, 857 

Si'inarain Mitter v. Bremutty 

Kishen .. ..291 

Srinatb Gangopadhya v. Mahes 

Chandra .. ..210 

SrinathKuarv. Prosonno Kumar, 876 

— Serma v. Radhakaunt, 264, 

266 
Srinivasa v, Annasami . . 64 

— V, Dandayudapani . . 768 

— V. KuppAnayyangar . . 228 

— V. Rengasami . . 782 

— V Yelaya . . . . 401 
Srinivasammal v. Vijayammal.. 521 
Sri Pal Rai v. Surajbali . . 838 
Sriram v. Bhagirath . . 519 
Sriramulu v. Ramavya 174, 177 
Stalkartt v. Gopal \, 382, 440 
Standeti I). Standen.. .. 235 
Standing v Bowring 499, 589 
Stark V. Dakyns . . . . 509 
Strinivas v. Hanmant . . 213 
Suba Singh «. Sarafraz . . 778 
Subba Aiyar v. Ganesa . . 637 
Subbaiyan v. AkhilHndammal . . 850 
Subbaluvammalt). Ammakucti . . 171 
Subba Rau c. Ruma Rau . . 668 
Subbarayar v. Subammal . . 236 



PAGE 

Subbanna v, Venkata Krishnan 869 
Subbaraya v. Kylasa . . 782 

— V. Manika . . 673 

— V. Sadasiva . . 673 

— V. Subbammal, 171, 197 
Subbarayana v. Subbakka . . 605 
Subba ray udu v. Gopavajjulu . . 471 
Subbarazu v. Venkataratnara . . 671 
Subbareddi v. Chengalamma, 842,873 
Subbaya v. Snraya . . . . 367 
Subbramaniem v. Subbramaniem 464 
J^ubbu Hegadi v. Tonaru . . 313 
Subbrahminayam r. Venkamma 161 
Subramana v. Arumuga 284, 285 
Subramaniam v. Arunachelam, 846. 

903 
Subramaniya t?. Ponnasami .. 489 

— r. Pudmanaba . . 670 

— V. Sadasiva 389. 440, 

462 

— V, Slvaflubramaniya, 336, 

739 
Sudanund v. Bonomallee . . 436 

— V. Soor joo Monee, 345, 357 , 

450, 452, 848 
Sudarsanam v. Narasimbulu, 335,849 
Sudduru)nne6sa i;. Majada .. 68 
Sudisht V. Mt. Sheobarat . . 863 

Sugeeram v. Jughoobunn . . 878 

Sukh Dei r. Kedamath . . 542 

Sukhbasi v. Guman . . . . 208 

Sukbimani v. Mahendranath . . 594 
Suleman Kadr v. Mehdi . . 590 

Sumbhoodutt v. Jhotee . . 776 

Sumbochunder v. Gunga 677, 787 
Sum run v. Chunder Mun . . 647 

— V. Khedun . . . . 640 
Sundar r. Khuman Singh . . 48 

— Lai V. Fakir Chand . . 593 
Sundari v. Pitambari . . 804 
Sundara v. Tegaraja . . 474 
Sundraraja v. Jagannada . . 401 
Sundarayan r. Sitaramayan , . 456 
Sundaralingaftami v. Raxnasami, 731 
Sunderammal V. Rangasanii .. 780 
Sunderaraja v. Pattanatha . . 284 
Sunker Lall v. Jnddoobuns . . 862 
Suntofih Ram r. Gera Pattnck . . 119 
Suppammal v. Collector of Tan- 

jore .. .. .. 684 

Surub ' . Shew Gobind .. 489 

Snraj Bansi Knnwar r. Mahipafc. 874 

— Uunsi Koer v. Sheo ProRhad, 389, 

390, 396, 399. 401, 407, 420, 

430, 439, 471, 638 

Surajmani v. Rabinath . . 890 

Suraneni v. Suraneni 672, 713 

Surat Chandra t>. Hhupendra . . 578 



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TABLE OP CASKS. 



lix 



PAGE 

Surat V. Ashootosh . . . . 489 

Suraya Bhukta v, Lakshmi Nara- 

samraa . . . . 776 

Sarbonarain r. Maharaj . . 513 

Surendra Keshav r. iXxirgasun- 

dari . . 137, 144, 238 

— Nandan r. Sailaka Kant, 

145. '242 
Saresh Chundcr v. Jogal Ghunder, 291 
Snriyamoni v. Kalikanta . . 119 

— Narayana v. Venkata- 
ramana .. 144 

Surja Kumari r. Gandhrap . . 765 

— Prasad v. Golab . . 401 
Bur jo Kant Nandi v, Mohesh 

Chundcr .. ..219 

Sursutty v. Poorno.. .. 674 

Sarya Row v. Chellayamraa, 525: 567 

— I-. Gungadhara. 565, 567 
SiitfU) V. Hurreeram . . 62 
Sutputtee V. Indranund . . 264 
^vamiyar v. Chokkaling&m . . 648 
Swami Rao v. Padapa . . 538 
Symes v. Hughes . . . . 596 
SjTud Tasoowar t\ Koon j Beharee, 462 

— Tuffuzzool V. Rughoonath, 472 

Tabhoonissa r. Koomar .. 586 

Tagore v. Tagore, 495. 501. 622, 538, 
541. 560. 566, 567, 668, 574, 582, 
685, 628, 677. 678. 814. 816 
Talemand r. Rukmina 626 

Tali war v. Puhlwaii . . 659 

Tallapragadab v. Crovedy . . 645 
Tammiraza 17. Pantina .. 134 

Taodavaraya c. Vnili 455, 462 

Tarachan r. Pudum . . 797 

Tara Chand u. Nobin Ch under. . 573 

— V, Reeb Ram. 57, 61, 872, 

422,451,752 

— Munnee v. Mo tee 62, 761 

— Mohun V. Rripa Moyee, 216, 

223 

— Soondaree i'. Collector of 

Mymensingh .. 614 

— Sooduree v. Oojul . . 591 

— Churn v. Suresh Chunder, 148 
Taramonee v. Shibnath . . 691 
Tara Naikin v. Nana Lakshmau, 62, 

63 
Taranee Churn v. Mt. Dasee . . 493 
Tarjnee Churn v. Watson . . 289 

— Prasad v. Bholanath , . 849 
Tariui Charan v. Saroda Suudari,203 
Taruck Chunder v. Huro Sunkur, 207 

— t'. Jodeshur . . 366 

Taruckpath v, Prosono . . 674 

Tayumana r. Perumal . . 463 



PAGE 

Teeluck r. Shama Churn . . 817 

TeeJuk t?. Ramjus . . . . 379 

Teencowree v. Dinonath 218, 641 
Teertaruppa v. Sooiiderajien . . 687 
Tej Chuud v. Srikanth Ghose . . 622 
— Proiab r. Champakalie . , 672 
Tejpal r. Ganga 284, 486, 489 

Tekaetr.Tekaetnee.. .. 635 

Tekait v. Anand Roy 632, 633 

— V. Basanta .. .. 119 

— V. Tekaitni . . , . 718 
TelliRv Saldanha ., ..833 
Teluck r. Muddun .. .. 863 
Temmakalt?. Subbammal .. 284 
Tennent v.Tonnent 696 
Teramath v. Lakshmi . . 686 
Thakoor v. Rai Raluk Ram . . 826 

— Jeebnath r. Court of 

WardA . . 98, 692, 764 

— Kapilnauth t;. The Gov- 

enimeut 448, 496 

— Oomrao v. Thakooranee 

MahtabKoonwar, 181, 198 
Thakoorain r. Mohun, 719, 728. 780 
Thakur Durriao v, Thakur Davi, 668 

— Huideo V. Jowahir . . 860 

— Nitrpal v. Jai Siugh, 49, 61 

— Shere r. Thakurain ..868 

— Singh V. Nokhe . . 628 
Thandvaraya v. Bubbayyar . . 687 
Thangam Pillai v. Suppa Pillai, 642, 

644 
Thaugathanni v. Ramu Mudali , . 197 
Thaya v. Shungunni . . 314 

Thayammalr. Annamalai .. 7J6 

— V. Venkatarama . . 876 

— V. Vencatramieu, 148,256 
Thillai v. Ramanatha . . 383 
Thukoo V. Ruma . . 161 
Thukrain Ramanand r. Raghu- 

na(h .. 360 

— Sookrajw. Governmeut, 

360, 868 
Thurstan t;. Nottingham . . 288 

Tikaram r. Barabanki 526, 861 

Tillakchand t7. Jitamal .. 698 

Tilock V. Ram Luckhee . . 773 

Timma v. Siddamma . . 193 

Timroappa r. Mahalinga 312, 702 
— V. Parmeshriamma.. 608 
Timmi Reddy r. Achamma . . 713 
Timmoni u. Nibarun . . 763 

Tincowri v. Krishna . . 616 

Tipperah case. 61, 859, 361, 672, 678, 
738, 772 
Tirumamagal r. Kamasvami . . 806 
Tirumala v. Lakshmamma . . 624 
Tirumalayappa v. Swami Naik . . 69i 



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Ix 



TABLE OF GASBS. 



PAOS 

Tod V. Kunhamod • . . . 370 

Tolasa v. Krishnachar . . 554 

Tooljaram V. Meean ..517 

— V. Nurbheram .. 553 

Toolshi V. Ramnarain • . 523 

Torit V, Taraprosonno . . 651 

Totawa v. Basawa . . . . 761 

Tottakara v. Poovully . . 271 

Tottempudi o. Seshamma . . 357 
Travancore case 158, 182 

Treekumjee v. Mt. Laroo 114, 755 
Tribhuvandas t;. QangaduB, 506, 509 
— V, Yorke Smith . . 350 

Trikam v. Hirji . . , . . 519 
Trimbak V. Narayan .. 380 

— Balkrishoa v. Narayan, 399, 

402, 421 

— Jivaji V. Sakharam . . 494 
Trimbakpari v, Gangabai . . 586 
Tukaram v. Gangaram . . 389 

— V, Gunaji.. .. 887 

— V. Ramohandra . . 479 
Tuljarain v. Mathuradas, 826, 829, 

830, 833, 869 
Tulsbi Ratii v. Bebari Lai . . 143 
Tundun v, Pokb Narain . . 592 

Tyrell v, Painton . . . . 542 

Udai Chundeb v. Asbutosb . . 851 
Udaram v. Banu. 391, 395, 471, 472, 
479, 482, 554 
Udaram v, Sonkaboi . . 608 

Uddoy V. Jadublal, 443. 444, 493, 524 
Ugarchund v, Madapa Somana. . 516 
Ujagarr. Pitam .. ..449 

Uji V. Hatbi . . . . 64 

Umabai v. Bbavu . . . . 806 

Uma Devi v. Gokoolanund, 172, 185, 
200, 202, 761 
Umamabeswara v, Singaraperu- 

mal .. ..422 

— Sundari v, Dwarkanatb, 362, 

630 

— Sunduri v. Sourobinee .. 153 

— Sunker v. Kali Komul . . 219 
Umaid v. Udoi . . . . 697 
Uman Hatbi v, Gooman . . 409 

— ParBbad v, Gandbarp 

SiDgb .. .. 590 

Umbasunker i7. Tooljaram . . 580 
Umed V. Nagindas . . . . 137 

Umrithanath v. GoureeDatb, 59, 345, 

865 
Umroot ©. Kulyandas 541,779 

Unide Bajah v. Pemmaeamy . . 530 
UnDoda v. Erskine . . . . 379 

Unnopoonia v. Gunga 391, 426 

Upendra v, Tbanda . . 715 



PAGE 

UpoDdra v, Ismail . . 523 

~ Lai v. Hemchandra, 501 ,666, 

571 

— V, Bani Prasamia Mayi, 189 

— Narain v. Gopeenath, 369, 

666, 875 
Upoma Kuchain v. Bholaram . . 107 
Upooroop V. Lalla Baudbjee, 400, 412 
Uppalav. Ramanuja .. 670 

Usbruf V, Brojessuree . . 849 

Vadaij V, Manda . . 46S 

— V. KolipalH .. 758 
Vadilal t\ Shah Kushal 379, 384 
Vadreva v. Wuppaluri . . 715 
Vagliano v. Bank of England . . 560 
Vaikantam v, Kanapirall 117, 602 
Vaitbianadham v. Gungarazu . . 65 
Valayooda v. Cbedumbara . . 471 
ValiaTamburattiv. ViraRayyan,714 
Valu V. Gunga . . 613 
Valnbai v. Govind . . 199 
Vallabhram v. Bai Hariganga . . 806 
Vallinayagam v. Pacbche, 543, 551. 

552 
Valiubdas V. Sakerbai .. 716 

Vaman v. Vasudev . . 654 

Vangala v. Vangala . . 822 

Varan akot v. Varanakot . . 313 

Varden v. Luckpatby . . 517 

Varjivan v. Gbelji 857, 860 

Vasudeva Bbatlur. Narasamma. .511 
Vasudev v, Narayan 499, 536 

— V. Venkatesb 471, 478 

— Hari v, Tatia Narayan .516 
Vasudevan v. Secretary of State, 51, 

55,91,93, 127, 888 
Vasudevanant v. Ramkrisbna . . 140 
Vayidinada v, Appu . . 176 

Vedanayaga v. Vedammal ..811 
Yedapuratb v. Vallabba . . 585 

Vedavalli v. Narayana . . 867 

Veerapermall v. Narain Pillay, 145, 
165f, 170, 186, 194, 542 
Veerasokkarajn v. Papiah . . 426 
Vejayah V. Anjolummaul .. 611 

Velayuda v. Sivararoa ..511 

Vellanki v. Venkata Rama, 144, 149, 
215. 724, 825 
Velliyammal t*. KathaChetty .. 399 
Velu V. Cbamu . . 312 

Vencata P. Venkummal ..715 

Vencatacbella v. Parvatbam . . 747 
Vencatapatby v. Lutcbmee . . 476 
Veniial r. Parjaram 720, 795 

Venkaji v. Visbnu . . 854 

Venkamma v. Savitramma . . 283 
Venkanna v, Aitamma . . 619 



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TABLE OF CA8£S. 



Izi 



PAGE 

Venkappa v. Jivaji . . . . 149 

VeDkappaiya v. Yisvefivaraiya . . 891 
Venkata r. Narayya 62, 636 

— V, Rajagopala . . 636 

— 17. Subadra 171. 176, 197 

— r. Snriya, 641. 664, 886, 886 
Venkatarhalam o. Venkatasami, 62 
VenkaUcharynln t;. Banga- 

charyala .. ..102 

Venkatacbella v, GhiDnaiya, 476, 484 

— V, Thafchommal.. 600 
Venkatachellamiah r. P. Narain- 

apah 683,686 

VenkatachallapaU v. 8ubbarayadu. 

766 
YeDkatacbellnin v, Venkataswamy. 

263 
Venkataghiri 17. Ghandra .. 697 
VeokatakrishDa v, Chimmakutti, 126 
Venkata Erisbnamma v, Anna- 

purDamma 168, 166 

VenkatalakslLmamma v. Nara- 

sayya .. 161 

VeDkatammal i?. Andiappa, 627, 646 
Veakatapetty v. Bamachendra. . 633 
Venkataram v. Venkata Lutchmee, 

761 
Venkatarama v, Bhujanga, 828. 904 

— r. Meera Labai .. 472 

— V. Senihivelu . . 393 
Venkataramanappa t7. MuniBami, 797 
Venkataramayyan v. Yenkata- 

cnbramania 464, 471, 864 

Venkatasami r. Kuppaiyan, 434. 464 
Venkatarayndu v.Yenkataram8ya368 
Veokatasubramaniem v, Thayar- 

ammal 730, 896 

VenkatSubbav. Puroshoitam .. 809 
Venkatasorya v. Court of Wards, 68, 
214.236,266,448,666 
Venkatasvami v. Subba Bau . . 296 
Venkateeaiya v, Yenkata Gbarlu, 183 
Yenkatramanna v. Brammanna. 496. 

667 
Yenkayya r. Lakshmayya . . 670 

— V, Yenkata . . 273 
Yenkayyamma v, Yenkatarama- 

nayyamma 673. 896 

Venkopadbyaya v, Kavari . . 619 
Yenkn v. Mahalinga . . 63 

Yerabair. Bai Hiraba .. 149 

Vidyapuma v. Vidyanidbi . . 684 
Violet Nerin, re .. ..276 

Yijaya 17. Sripati .. ..618 

Yijiarangam t7. Lakshuman, 171,690, 
830. 834, 903 
Yinavek v. Gopal Hari . . 634 

— * V. Govind 868,860 



PAOB 

Yinayek Narayan v. Govindrav 

Cbintaman .. 266 

V. Luzumeebaee, 720, 826. 

829. 831 

Yirabad racbari o. Kuppammal . . 606 

Yirabadbra v. Guruvenkata 488 

— t'. Hari Bama .. 611 
Yirakumara r. Gopalu . . 661 
Yiraragava v. Bamalinga .. 183 
Viraragavamma v. Samudrala.. 464 
Yira Bayen v. Yalia Bani . . 311 
Yiraramuthi v. Singaravelu . . 603 
Yirasami v, Yarada. . . . 463 
Yirasangappa v, Badrapa. . . 660, 

828. 887 
Yirasvami 17. Appaevami, 112,611,614 

— V. Ayyasvami 471, 476 
Yiravara i^. Surya 624, 672 
Yirayya v, Hanumanta .. 174 
Vimpaksbappa v. Nilgangava . . 274 

— 17. Sbidappa . . 289 

Yisalaksbi t7. Sivaramien .. 269 

Yisalatcbmi v, 8ubbu .. 496 

Yisalatcbv v, Annasainy, 348, 860. 

606, 614 

YiBhnu 17. Krisbnen 68. 176. 388 

— Kesbav v. Bamobandra. . 291 

~ Sbambbog i7. Manjamma, 618 

Yisvanatban 17. Saminatban . . 99 

Yisbvanatb v. Kristnaji . . 674 

Yiswanadba i;. Bungaroo . . 634 

— 17. Moottoo Moodely, 296 

Vitbal V. Bam Bao .. 778 

Yitbaldas v. Jesbubai 716, 794 

Yitboba 17. Bapu, 166, 166, 242, 261 

Yitbu V. Govinda . . 768 

Yitla Bntten v, Yemenamma,477. 664 

Yittal r. Ananta . . 468 

Yrandivandas v. Yamunabai, 240,479, 

603 
Yudda 17. Yenkummab . . 606 

YuUubbdas v. Tbucker Gordhan- 
dat) .. .. .. 674 

Yutsavoy i7. Yutsavoy . . 762 

Yyankatroya r. Sbivrambbat . . 496 
Yyas Cbimanlal i7. Yyas 190, 204 
Yydinada 17. Nagammal ..343 

— 17. Yeggia . . 767 
Yytbilingav. Yijiatbammal, 106, 182 

Waqhela Baj 8anji 17. Shekb 
Masludin .. 286 



Wajed Hossein 17. Nankoo 389, 463 
Wajiban 17- Kadir .. 296 

Wajidi7. Ibad All .. 642 

Waman Bagbupati v. Krisbnaji, 81 . 

188 
Wannatban v. Keyakadatb . . 600 



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TABLE OF CASES. 



PAGE 

Watson V. Bam Ghand Dutt . . 382 

— . r. Sham Lall Mitter .. 284 

Wen lock t;. River Dee Co. . . 485 

Wilkinson i;. Jougliin . . 'J89 

Woodoyaditte r. Mukouud . . 524 
Wooma Pershad v, Qirish Chun- 

der .. .. ..807 

Wopendro V. Thanda .. 716 

Wulabhram V. Bijiee .. 886 

YadBam £?. Umrao.. ..600 

Yamunabai v, Manubai . . 609 

Yanumula v. Boochia 351, 358 

Yarakalamma v. Anakala . . *204 

Yaramati v. Chundra . . 596 



PAGE 

Yarlagadda Mallikarjuna r. Y. 

Durga . . 61 

— V. Y. Darga, 616,619,635 

Yashyatitrav r. Kashibai .. 613 

Yejnamoorty v. Chavaly . . 644 

Yekeyamian v. Agniawarian, 450, 689 
Yeknath v. Warabai . . 272 

Yellawa v. Bhimangavda . . 627 

Yenuraulav.Ramandora. 34 1,351,736 
Yethirajulu »•. Mukuntu 667, 768 
Yet i raj v. Tayammal . . 715 

Yetteyapooram Zemindary, 608, 746 
Young f. Peachey . . 596 



Zamoona Boyee v. Narayan 



119 



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ADDENDA. 



Cases upon the following subjects have appeared while 
this edition was passing through the Press. The 
references in braolcets show the page in the text 
where the matter is discussed. 

Adoption, evidence of (p. 203)— 

Achat Ram v. Kasivi Husain, 32 I.A., p. 121 ; 8. C. 32 All., p. 290. 
authority to adopt operateR like power of appointment (p. 259) — 

Yethirajulu v. Mukunthu, 28 Mad., 363. 
estate of widow with authority before she adopts (p. 153) — 

Amulya v. Kdlidas, 32 Cal., 861. 
relationship of adopting mother to natural father immaterial (p. 177) — 

Jaisingh Pal v. Bijai Pal, 27 All., 417. 
reason for consent to act of widow (p. 156) — 

Narayanasami v. Mangammalt 28 Mad., 315. 
evidence of consent (p. 161)— 

Bhimappa v. Dasawa, 29 Bom., 40. 
consent by father-in-law ineffectual, after his death (p. 156 — 

Lakshmibai v. Vishnu, 29 Bom., 410. 
authority incapable of execution (p. 146) — 

Amulya v. Kalidas, 32 Cal., 861. 
devesting estate of coparcener (p. 241) — 

Bachoo V. Mankorebai, 29 Bom., 51. 
of junior widow (p. 240) — 

Narayanasami v. Mangammal, 28 Mad., 815. 
Benamidab, his right to sue (p. 599)— 

Mutturayan v. Suma Samavaiyan, 28 ^lad., 52(*. 
Cr*AB8, grant to, where some members incapable of taking (p. 506)— 

Bhagabati v. Kalicharan, 32 Cal., 992. 
Conjugal rights, restitution of (p. 119)— 

Sahadur v. Rajwanta, 27 All., 96. 
Gift, what amounts to change of possession (p. 500) — 

Bibi Khaver v Rukhia Sultan, 29 Bora., 46H. 
to a mother involves no p^'esumption that it is only for life (p. 525) — 

Atul Krishna v. Sanyasi Churn, 32 Cal., 1051. 



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ADDENDA. 

Inhebitangb, words creating estate of in grant to female (p. 522) — 

BasutUa v. Kamakshya, 32 I. A., 181 ; Atul Krishna v. Sanyasi 
Chum, 82 Gal., 1051. 
MuNTBNANGB, presumption aH to its duration (p. 524) — 

Tituram v. Cohen, 32 I. A., 186; S. C, 28 Mad., 608. 
OuDH Taluqdabs (p. 368 note) — 

Sheo Singh v. Raghubans, 32 I. A., 103. 
Pbimogbniture and Impartibility, custom and proof of (p. 61) — 

Kachi Kaliyana v. Kachi Yum, 32 I. A., 269 ; 8. C. 28 Mad., 508 ; 
Shyamanand v. Ram Kanta, 82 Gal., 6 ; SarabjU v. Inderjit, 27 
All., 96. 
SuBBTY, son's liability for father's debt as (p. 389) — 

Chettikulam v. Chettihulam, 28 Mad., 377. 
Will, what document cannot be proved aF. (p. 579) — 

Chaitanya v. Dayal, 32 Gal., 1082. 



ERRATA. 



Pagb 91, 9th line from bottom, for "father-in-law" read "mother's 
father." 
6th line from bottom, for "the father-in-law" read "her 
father." 



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HINDU LAW AND USAGE. 



CHAPTEE I. 

ON THE NATURE AND ORIGIN OF HINDU LAW. 

§ 1. Until veiy lately, writers upon Hindu Law have Aathontvof 
assumed, not only that it was recorded exclusively in the 
Sanskrit texts of the early sages, and the commentaries 
upon them, but that those sages were the actual originators 
and founders of that law. The earliest work which at- 
tracted European attention was that which is known as the 
Institutes of Manu. People talk of this as the legislation 
of Manu ; as if it was something which came into force on 
a particular day, like the Indian Penal Code, and which 
derived all its authority from being promulgated by him. 
Even those who are aware that it never had any legislative 
authority, and that it only described what its author be- 
Ueved to be, or wished to be, the law, seem to imagine that 
those rules which govern civil rights among Hindus, and 
which we roughly speak of as Hindu law, are solely of 
Brahmanical origin. They admit that conflicting customs 
exist, and must be respected. But these are looked on as 
local violations of a law which is of general obligation, and 
which ought to be universally observed ; as something to 
be checked and put down, if possible, and to be apologised 
for, if the existence of the usage is proved beyond dispute. 

§ 2. On the other hand, those who derived their not rmivereai. 
Imowledge of law not from books, but from acquaintance 
with Hindus in their own homes, did not admit that 
the Brahmanical law had any such universal sway. Mr. 
Ellis, speaking of Southern India, says : ** The law of the 



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NATURE AND ORIGIN OP HINDU LAW. [cHAP. I, 

Smritis, unless under various modifications, has never been 
the law of the Tamil and cognate nations'* (a). The same 
opinion is stated in equally strong terms by Dr. Burnell and 
by Mr. Nelson in recent works (6). And Sir H. S. Maine, 
writing with special reference to the North- West of India, 
says : " The conclusion arrived at by the persons who 
seem to me of highest authority is, first, that the codified 
law — Manu and his glossators — embraced originally a 
much smaller body of usage than had been imagined, and, 
i%ext, that the customary rules, reduced to writing, have 
been very greatly altered by Brahmanical expositors, con- 
stantly in spirit, sometimes in tenor. Indian law may be 
in fact affirmed to consist of a very great number of local 
bodies of usage, and of one set of customs reduced to 
writing, pretending to a diviner authority than the rest, 
exercising consequently a great influence over them, and 
tending, if not checked, to absorb them. You must not 
understand that these bodies of custom are fundamentally 
distinct. They are all marked by the same general fea- 
tures ; but there are considerable differences of detail ** (c). 

§3.1 believe that even those who hold to their full extent 
the opinions stated by Mr. Ellis and Mr. Nelson would 
admit that the earliest Sanskrit writings evidence a state 
of law which, allowing for the lapse of time, is the natural 
antecedent of that which now exists. Also, that the later 
commentators describe a state of things which, in its gen- 
eral features, though not in all its details, corresponds fairly 
enough with the broad facts of Hindu life. For instance, in 
reference to the condition of the undivided family, the order 
of inheritance, the practice of adoption, and the like. The 
proof of the latter assertion seems to me to be ample. As 
regards Western India, we have a body of customs, which 
cover the whole surface of domestic law, laboriously ascer- 

(a) 2 Stra. H. L., 163. See the futwahs of the pundits, Inderun v Rama- 
tawmy, 13 M. I. A., 149 ; S. C, 8 B. L. R., 1 ; S. C, 12 Suth. (P. C), 41. 

(6) In trod action to the DayaVibhaga, 13 ; Varadar»ijah, 7 ; Nelson's View 
of Hindu Law, Preface and Chap. i. ; Nelson's Scientific Studv of Hindu Law 
(1881). (c) Village CooimaniUes, 62. 



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PARAS. 3 & 4.] NATURE AND ORIGIN OP HINDU LAW. 3 

tained by local inquiry, and recorded by Mr. Steel ; whilst 
many of the most important decisions in Borrodaile's 
Reports were also passed upon the testimony of living 
witnesses. As regards the North- West Provinces and the 
Punjab, we have similar evidence of the existing usages of 
Hindus proper, Jains, Jats, and Sikhs, in the decisions of 
the Courts of those provinces. As regards other parts of 
India, the evidence is much more scanty. But it is a matter 
of every-day experience that, where there exists a local usage 
opposed to the recognised law-books, it is unhesitatingly 
set up and readily accepted. As for instance, the exclu- 
sion of women from inheritance in Sholapur, and the 
practice of divorce and second marriages of females among 
the Maravers in Southern India. No attempt has ever 
been made to administer the law of the Mitakshara to the 
castes which follow the Marumakatayem law in Malabar, 
and the Alya San tana law in Canara, because it was per- 
fectly well known that their usages were distinct. Else- 
where that law is administered by native Judges, with the 
assistance of native pleaders, to native suitors, who seek 
for and accept it. If this law was not substantially in 
accordance with popular feeling, it seems inconceivable 
that those who are most interested in disclosing the fact 
should unite in a conspiracy to conceal it. That there is 
such an accordance appears to me to be borne out by the 
remarkable similarity of this law to the usages of the Tamil 
inhabitants of the north of Ceylon, as stated in the Thesa- 
waleme (d). But the question remains, whether these 
usages are of Brahmanical, or of local, origin ? Whether 
the flavour of Brahmanism, which pervades them, is a 
matter of substance, or of accident ? Where usage and 
Brahmanism differ, which is the more ancient of the two ? 

§ 4- It is evident that this question is one of the greatest Priority of asa^e 
practical importance, and is one which a judge must fre- ^m^MrtaS!'"*™ 
quently, though perhaps imconsciously, answer before he 
can decide a case. For instance, it is quite certain that 

{d, See as to this work, po$t § 44. 



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Banskrit law 
based on usage 



not on direct 
anttiority. 



NATURE AND ORIGIN OF HINDU LAW. [CHAP. I, 

religious efficacy is the test of succession according to 
Brahmanical principles. If, then, one of two rival claim- 
ants appears to be preferable in every respect, except that 
of religious efficacy, the judge will have to determine 
whether the system which he is administering is based 
on' Brahmanical principles at all. So as regards adoption. 
A Brahman tests its necessity and its validity solely by 
religious motives. If an adoption is made with an utter 
absence of religious necessity or motive, a judge would 
have to decide whether religion was an essential element in 
the transaction or not. 

§ 5. My view is that Hindu law is based upon immemo- 
rial customs, which existed prior to, and independent of, 
Brahmanism. That, when the Aryans penetrated into 
India, they found there a number of usages either the same 
as, or not wholly unlike, their own. That they accepted 
these, with or without modifications, rejecting only those 
which were incapable of being assimilated, such as poly- 
andry, incestuous marriages, and the like. That the latter 
lived on a merely local life, while the former became incor- 
porated among the customs of the ruling race. That when 
Brahmanism arose, and the Brahman writers turned their 
attention to law, they at first simply stated the facts as they 
found them, without attaching to them any religious signi- 
ficance. That the religious element subsequently grew up, 
and entwined itself with legal conceptions, and then distort- 
ed them in three ways. First, by attributing a pious pur- 
pose to acts of purely secular nature. Secondly, by clog- 
ging those acts with rules and restrictions suitable to the 
assumed pious purpose. And, thirdly, by gradually alter- 
ing the customs themselves, so as to further the special 
objects of religion, or policy, favoured by Brahmanism. 

§ 6. I think it is impossible to imagine that any body 
of usage could have obtained general acceptance throughout 
India, merely because it was inculcated by Brahman 
writers, or even because it was held by the Aryan tribes. In 



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PABAS. 5 — 7.] NATURE AND ORIGIN OP HINDU LAW. S 

Southern India, at all events, it seems clear that neither 
Aryans nor Brahmans ever settled in sufficient numbers to 
produce any such result (e). We know the tenacity with 
which Eastern races cling to their customs, unaffected by 
the example of those who live near them. We have no 
reason to suppose that the Aryans in India ever attempted 
to force their usages upon the conquered races, or that they 
could have succeeded in doing so, if they had tried. The 
Brahman treatises themselves negative any such idea. 
There is not an atom of dogmatism, or controversy, among 
the old Sutra writers. They appear to be simply recording 
the usages they observed, and occasionally stop to remark 
that the practices of some districts, or the opinions of other 
persons are different (/) . The greater part of Manu is ex- 
clusively addressed to Brahmans ; but he takes pains to 
point out that the laws and customs of districts, classes, 
and even of families ought to be observed {g). Example 
and influence, coupled with the general progress of society, 
have largely modified ancient usages; but a wholesale 
substitution of one set of usages for another appears to 
me to be equally opposed to philosophy and to facts. 

§ 7. The most distinctive features of the Hindu law are DistinotiTe faa- 
the undivided family system, the order of succession, and ^fol? ^'***" 
the practice of adoption. The two latter are at present 
thoroughly saturated with Brahmanism. Its influence upon 
the family has only been exerted for the purpose of break- 
ing it up. But in all cases, I think it will be satisfactorily 
shown that Brahmanism has had nothing whatever to do 
with the early history of those branches of the law ; that 
these existed independently of Brahmanism, or even of 
Aryanism, and that where the religious element has entered 
into, and remodelled them, the change in this direction has 

(<) See Hanter's OrisM, i., 241, 966; Nelson's View, chaps, i. & ii.; Madura 
lUniiAl, Pt. II., p. 11, Pt. in., ii. 

(/) See ApMt., li., Ti.^ U, |6— 9 : Gaat., xxviii., § 26, 40. Dr. Jolly, referring to 
the differences of doofcnne among the Sadra writers, says : ** It is hardly possible 
to trace this diversity of doctrine to another cause than the difference of 
popolar usage sabsisting between the dirers times and ooantries in which the 
ensting Dhannaaatras had originated." (Jolly, Leot. 40.) 

ig) BeepoH I 43 ; see M. MftUer, A. S. L., 60. 



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NATURE AND ORIGIN OP HINDU LAW. [CHAP. I. 

been absolutely modem. This view will be developed at 
length in the course of the present work. It will be suf- 
ficient here briefly to indicate the nature of the argument. 
Joint Family § 8. The Joiut Family is only one phase of that tendency 

to hold property in community which, it is now proved, 
was once the ordinary mode of tenure. The attention of 
scholars was first drawn to this point by the Sclavonian 
Village Communities. But it is now placed beyond doubt 
that joint ownership of a similar character is not limited to 
Sclavonian, or even to Aryan, races ; but is to be found in 
every part of the world, where men have once settled down 
to an agricultural life (h) . In India, such a corporate system 
is universally found, either in the shape of Village Com- 
munities, or of the simple Joint Family. So far from the 
system owing its origin to Brahmanism, or even to Aryan- 
ism, its most striking instances are found precisely in those 
provinces where the Brahman and Aryan influence was 
weakest. As regards the Village Communities, the Punjab 
and the adjoining districts are the region in which alone 
they flourish in their primitive vigour. This is the tract 
which the Aryans must have first traversed on entering 
India. Yet it seems to have been there that Brahmanism 
most completely failed to take root. Dr. Muir cites 
various passages from the Mahabharataj which establish 
this. The inhabitants, ** who dwell between the five rivers 
which are associated with the Sindhu (Indus) as the 
sixth," are described as " those impure Bahikas, who 
are outcasts from righteousness.'* ** Let no Arya dwell 
there even for two days. There dwell degraded Brahmans, 
contemporary with Prajapati. They have no Veda, no 
Vedic ceremony, nor any sacrifice.'* ** There a Bahika, 
born a Brahman, becomes afterwards a Kshatriya, a 
Vaiciya, or a Sudra, and eventually a barber. And again 
the barber becomes a Brahman. And once again the 
Brahman there is born a slave. One Brahman alone is 
born in a family. The other brothers act as they will 

{h) See Lave^.eye Propri^t^ nnd Sir H. 8. Maine's Workp, paMtm. 



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PARAS. 8 & 9.] NATURE AND ORIGIN OP HINDU LAW. 

without restraint " (i). And they retain this character to 
the present day, as we shall see that with them the religi- 
ons element has never entered into their secular law. Next 
to the Punjab the strongest traces of the Village Commu- 
nity are found among the Dravidian races of the South. 
Similarly as regards the Joint Family. It still flourishes in 
its purest form, not only undivided but indivisible, among 
the polyandrous castes of Malabar and Canara, over whom 
Brahmanism has never attempted to cast even the hem of 
its garment. Next to them, probably, the strictest survival 
of the undivided family is to be found in northern Ceylon, 
among the Tamil emigrants from the South of India. It 
is only when the family system begins to break up that we 
can trace the influence of Brahmanism, and then the 
break up proceeds in the direct ratio of that influence (k). 

§ 9. The case of inheritance is even more strongly in Lawof inherit- 
favour of the same view. The principle that " the right of 
inheritance, according to Hindu law, is wholly regulated 
with reference to the spiritual benefits to be conferred on 
the deceased proprietor,** has been laid down on the highest 
judicial authority as an article of the legal creed which is 
universally true, and which it would be heresy to doubt. 
It is strictly and absolutely true in Bengal. It is not so 
elsewhere (l). Among the Hindus of the Punjab, the order 
of succession is determined by custom, and not by spiritual 
considerations (m). Throughout the Presidency of Bom- 
bay, numerous relations, and especially females, inherit, to 
whom no ingenuity can ascribe the slightest religious merit. 
According to the Mitakshara, consanguinity in the male 
line is the test of heirship, not religious merit. All those 
who follow its authority accept agnates to the fourteenth 
degree, whose religious eflicacy is infinitesimal, in prefer- 

ii) Mair, S. T., ii., 482. Hee, too, Baden -Powell— the Indian Village Com- 
munity, 1896. 131—136. 

(*) See post chap, vii., J 261. 

{I) Thi« was long since pointed out by Professor "Wilbon. See his Works, v., 
14. Sir H. S. Maine haw also had the hardihood to hint a disbelief of the doc- 
trine. V iliage Commnnities, 53. 

(m) Punjab Customs, li ; Punjab Customary law, ii., 100 — 142. 



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8 NATURE AND ORIGIN OP HINDU LAW. [cHAP. I, 

ence to cognates, such as a sister's son, whose capacity 
for offering sacrifices ranks very high. The doctrine that 
heirs are to be placed in the direct order of their spiritual 
merit was announced, for the first time, by Jimuta Vahana, 
and has been expanded by his successors. But it rendered 
necessary a complete remodelling of the order of succession. 
Cognates are now shuffled in among the agnates, instead 
of coming after them ; and the very definition of cognates 
is altered, so as to exclude those who are actually named 
as such by the Mitakshara. The result is a system whose 
essence is Brahmanism, and whose logic is faultless ; but 
which is no more the system of early India, or of the rest 
of India, than the English Statute of Distributions (n). In 
Bengal, the inheritance follows the duty of offering sacri- 
fices. Elsewhere, the duty follows the inheritance. 

Law of Adop- § 10. The law of adoption has been even more success- 
fully appropriated by the Brahmans, and in this instance 
they have almost succeeded in blotting out all trace of a 
usage existing previous to their own. There can be no 
doubt that, among those Aryan races who have practised 
ancestor-worship, the existence of a son to offer up the 
religious rites has always been a matter of primary import- 
ance. Where no natural-born son exists, a substituted son 
takes his place. This naturally leads to the practice of 
adoption. But apart from all religious considerations, the 
advantages of having a son to assist a father in his life, to 
protect him in his old age, and to step into his property 
after his death would be equally felt, and are equally felt, 
by other races. We know that the Sudras practised adop- 
tion, for even the Brahmanical writers provide special rules 
for their case. The inhabitants of the Punjab and North- 
West Provinces, whether Hindus proper, Jains, Jats, Sikhs, 
or evenMuhammedans, practise adoption, without religious 
rites, or the slightest reference to religious purposes. The 
same may be said of the Tamils in Ceylon. Eeven the Brah- 
manical works admit that the celebration of the name, and 



(fi) At to the whole of thU, see chap. XYi. 



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PABAS. 10 & 11.] NATURE AND ORIGIN OP HINDU LAW. 9 

the perpetuation of the lineage, were sufficient reasons for 
affiliation, without reference to the rescue of the adopter's 
soul from Hell. In fact some of the very earliest instances 
mentioned are of the adoption of daughters. This latter 
practice is followed to the present day by the Bheels, 
certainly from no motives of piety, and by the Tamils of 
Ceylon. There can, I think, be no doubt that if the Aryans 
brought the habit of adoption with them into India, they 
also found it there already ; and that the non-Aryan races, 
at all events, derive it from their own immemorial usage, 
and not from Brahmanical invention. There seems, also, 
every reason to believe that, even among the Aryan Hindus, 
the importance now ascribed to adoption is comparatively 
recent. Little is to be found on the subject in the works 
of any but the most modern writers, and the majority of 
the ancient authors rank the adopted son very low among 
the subsidiary sons. The series of elaborate rules, which 
now limit the choice of a boy, are all the offspring of a 
metaphor ; that he must be the reflection of a son. These 
rules may be appropriate enough to a system which requires 
the fiction of actual sonship for the proper performance of 
religious rites ; but they have no bearing whatever upon 
affiliation, which has not this object in view, and, as we shall 
find, they are disregarded in many parts of India where the 
practice of adoption is strongly rooted. Yet the Brahmans 
have created the belief that every adoption is intended to 
rescue the soul of a progenitor from Put, and that it must 
be judged of solely by its tendency to do so. And our tri- 
bunals gravely weigh the amount of religious conviction 
present to the minds of persons, not one of whom probably 
connects the idea of religion with the act of adoption, more 
than with that of procreation (o). 

§ 11. If I am right in the above views, it would follow Limited wn^u- 
that races who are Hindu by name, or even Hindu by reli- knt Uw.** 

(o) Mftna give* * preferenc« to th« eldeiit aon, on the ground tUat he alone 
has been begotten from h senfle of duty, ix., § 118, 119. See this aubjeot diacoss- 
ed at length, p09t ch. t., $ 186, et teq. 



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10 NATURE AND OEIGIN OF HINDU LAW. [CHAP. I^ 

gion (p), are not necessarily governed by any of the written 
treatises on law, which are founded upon, and developed 
from, the Smritis, Their usages may be very similar, but 
may be based on principles so different as to make the 
developments wholly inapplicable. Possibly all Brahmans,. 
however doubtful their pedigree, may be precluded, by a 
sort of estoppel, from denying the authority of the Brahma- 
nical writings which are current in their district {q). But 
there can be no pretence for any such estoppel with regard 
to persons who are not only not Brahmans, but not Aryans. 
In one instance, a very learned judge, after discussing a 
question of inheritance among Tamil litigants, on the most 
technical principles of Sanskrit law, wound up his judgment 
by saying, ** I must be allowed to add that I feel the gro- 
tesque absurdity of applying to these Maravers the doctrine 
of Hindu Law. It would be just as reasonable to give them 
the benefit of the Feudal Law of real property. At this late 
day it is, however, impossible to act upon one's consciousness 
of the absurdity " (r). I must own I cannot see the impos- 
sibility. In Northern and Western India, the Courts have 
never considered themselves bound to apply these principles 
to sects who did not profess submission to the Smritis, In 
the case of the Jains, for instance, research has established 
that their usages, while closely resembling those of ortho- 
dox Hinduism, diverge exactly where they might be expect- 
ed to do, from being based on secular, and not on religious^ 
principles (s). The Bengal Court, as might be anticipated, 
is less tolerant of heresy. But it is certainly rather start- 
ling to find it assumed as a matter of course that the natives 
of Assam, the rudest of our provinces, are governed by the 
Hindu law as modified by Jirauta Vahana (t). It would be 
curious to enquire whether there was any reason whatever 
for this belief, except the fact that appeals lay to the High 

\p) Many of the Dravidian races, who are called Hindus, are worehipperB of 
HiiakeB and devils, nnd are as indifferent to Vishnu »nid Siva uh iire the inhabit- 
ants of Whitechapel. 

{q) See Gopalaygan v. Baahvpatiayyan , 7 Mad. H. C, 255. 

(r) HoUoway, /., Muftu Vizia v. Vorasmga, 6 Mad. H. C, 341. 

(«) Post § 46. 

(0 Deepo Dehia v. Gobindo Deh, 16 Suth., 42 ; S. C, 11 B. L. R., 18J. 



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PABA. 12.] NATUEE AND OBIGIN OF HINDU LAW. 11 

Court of Bengal. It is a singular and suggestive circum- 
stance that the Oriya chieftains of Orissa and Ganjam, who 
are identical in origin, language and religion, have been 
supposed to follow different systems of law ; the system 
ascribed to each being precisely that which is most familiar 
to the Courts to which they are judicially subject {u). 

§ 12. On the other hand, while I think that Brahmani- ^^^^^ 
cal law has been principally founded on non-Brahmanical 
customs, so I have little doubt that those customs have been 
largely modified and supplemented by that law. Where 
two sets of usage, not wholly reconcilable, are found side 
by side, that which claims a divine origin has a great ad- 
vantage in the struggle for existence over the other (v). 
Further, a more highly developed system of law has always 
a tendency to supplant one which is less developed. A very 
little law satisfies the wants of rude communities. As they 
advance in civilization, and new causes of dispute arise, 
they feel the necessity for new rules. If they have none of 
their own, they naturally borrow from their neighbours. 
Where evidence of custom is being given, it is not uncom- 
mon to find a native saying, " We observe our own rules. 
In a case where there is no rule we ask the pundits.** Of 
course the pundit, with much complacency, produces from 
his Shasters an answer which solves the difficulty. This is 
first adopted on his authority, and then becomes an accre- 
tion to the body of village usage. This process would, of 
course, be aided by the influence whi<ih the Brahmans always 
carry with them, by means of their intellectual superi- 
ority. Dr. Jolly points out that a large number of law Com- 
mentaries and Digests have been written either by Indian 
Kings and Prime Ministers themselves, or under their 
auspices and by their order (Jolly, Lect. 27). The Hindu 

(u) See aK to Orisaa, note to Bishenpirea v. Soogunda, 1 S. D., JJ7 (49, 61). 
Bat in a case reported by Mr. MacNagbten from Orissa, in 181.!, tbe futwak 
was certainly given according to Mitaksbara law. 2 W. MacN.. 806. In tbe rase 
of ParbaH Kumara v. Jagadia Chunde^r^ both tbe Courts of India treated it as 
andoabted tbat Orissa whs governed by Mitakshara law. 29 I. A., pu. 85, 68 ; S. C., 
29 Cal., pp. 440, 442. No decision on the point was given by the Frivy Council. 
As to Ganjam, see Baghunadha v. Broeo KUhoro^ 3 I. A., 154 ; S. C, 1 Mad., 69; 
S. C, 26 Suth., 291. (t;) See Maine's Vill. Com.. 62. 



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12 NATURE AND ORIGIN OP HINDU LAW. [cHAP. I, PARA. 13.] 

judges were also Brahmans. Both writers and judges 
would naturally tinge native usages with their own views, 
and supplement them by their own doctrines. The change 
must have gone on with great rapidity during the last 
century, when so many disputes were referred to the 
decision of our Courts, and settled in those Courts solely 
in accordance with the opinions of the pundits (w). 
PraotioAi infer- § 13. The practical result of this discussion, so far as it 
may turn out to be well founded, seems to be — First, that 
we should be very careful before we apply all the so-called 
Hindu Law to all the so-called Hindus. Secondly, that in 
considering the applicability of that law, we should not be 
too strongly influenced by an undoubted similarity of usage. 
Thirdly, that we should be prepared to find that rules, such 
as rules of inheritance, adoption, and the like, may have 
been accepted from the Brahmans by classes of persons who 
never accepted the principles, or motives, from which these 
rules originally sprung ; and therefore, lastly, that we 
should not rashly infer that a usage, which leads to neces- 
sary developments, when practised by Brahmans, will lead 
to the same developments, when practised by alien races. 
It will not do so, unless they have adopted the principle as 
well as the practice. Without both, the usage is merely a 
branch severed from the trunk. The sap is wanting, which 
can alone produce growth (x), 

{w) See post § 40. The following remarks, drawn from the CensuH of 1831, appear to 
have an important bearing on the sabjeot: — *' Hindnism includes a fl actuating mass 
of beliefs, opinions, usages and observances, social and religious ideas, the exact 
details of wnich it is impossible to reduce to anything like order, and in the most 
diverse aspects of which it is impossible to recognise anything that is common. 
A belief in the religious superiority of Krahmans, veneration for the cow, and 
respect for the distribution of castes, are the elements of Hinduism, which are most 
generally recognised as fundamental . But each and all of these has been rejected, 
or is rejected by tribes, castes or sects, whose title to be included amongst Hindus 
is not denied."~( Census of 1891, N.-W. Province Bej^ort, 192. *' As a general rule 
it would seem that it is more the effect of theexdnsiveness of their Hmdu neigh- 
bours than the efforts of the Gosaens, which induces these rude tribes to change 
their social status. For, after all, it is a matter of social status more than anything 
else. Hinduism asks for very little in the way of dogma or belief. A man may be 
a theist or shamanist ; it is all one so long as he conforms to certain prescribed 
usages ; and if he consents to conform to them he is rewarded by a recognised 
place in the Hindu system, without being troubled by questions regarding the 
orthodoxy of his religious beliefs."— Census of 1891, Assam Report L, 84. 

(x) For a full discussion as to the oases in which Hindu law is made the rule 
of decision in the Courts of British India, see W. & B. (8rd ed.), 1—7. Where a 
person fails to establish that he oonforms to any religion which carries with it. 
any special form of law, his rights will be dealt with according to ** justice, 
equity and good conscience." Rc^ Bahadur v. Bi$hen Dyal, 4 All., 348. 



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CHAPTER n. 

THE SOURCES OF HINDU LAW. 

1. The Smritu, ^ 15, j 3. SchooU of Law, ^ 9S. 

2. TJif Commentators, ^ 25. | 4. Judicial Decitiona, ^ db. 

§ 14. I PBOPOSE in this chapter to examine the sources 
of Hindn Law, so far as they are to be found in the writings 
of the early Sanskrit sages and their commentators. A 
general reference to the accessible authorities on this branch 
of the subject is given below (a). I have not thought it 
necessary to give special references, unless where the state- 
ment in the text was still a matter of controversy ; nor have 
I attempted to make a show of learning, which I do not 
possess, by referring at length to the works of Hindu writers, 
of whom I know nothing but their names. Under this 
branch of the subject, I shall offer some observations upon 
those differences of opinion, which are generally spoken of 
as constituting various " schools of law." I shall conclude 
by making some remarks upon the influence which our 
judicial system has exercised upon the natural development 
of Hindu Law. The important subject of Custom will 
be reserved for the next chapter. 

§ 15. I. TheSmritis. — The great difficulty, which meets 
us in the study of Hindu Law, is to ascertain the date to 
which any particular statement should be referred. Chro- Chronology 
nology has absolutely no existence among Hindu writers. '*®'*"^**8*®"*- 

(a) See M. Muner*9 Ancienfe Sanskrit Literature: Br. Biihler's Introduction 
to the Digest of Hindn Law by West and Biihler ; Colebrooke's Prefaces to the 
Daya Bhaga and the Digest, and his note, 1 Stra. H. L., 315; the Preface to 
Sir Thomas Strange'B Hinda Law ; Dr. Bumeirs Prefaces to his translations 
of the Daya Vi bhaga and Varadrajah, and the introduction to the first volume 
of Uor lev's Digest: Stenzler's Preface to his translation of Yajnavalkya; Dr. 
Jolly's Preface to Narada ; Mayr, Ind. Erbrecht, 1 — 10, where the conclusions 
of 'Broteeaoir M. MtUler and Dr. BQhler are adopted ; Professor Monier Williams' 
Indian Wisdom ; N. Mandlik's Introduction and Appendix I. ; Dr. BUhler's 
Introdactions to Apostamba and Gautama, Vasishtha and Baudhayana, and 
Mann ; Dr Jolly's Introduction to Vishnu. Sacred Books of the East, Vols. 11, 
VII, XrV and XXV. B. Sorvadhikari, § 4 ; Jolly, Lect. 1—69; Jolly, Becht 
nnd Sitte, Chap. 1. 



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14 SOURCES OP HINDU LAW. [CHAP. II, 

They deal in a vast, general, way with cycles of fabulous 
length, which, of course, have no relation to anything real. 
It is impossible to ascertain when the earliest sages lived, 
or whether they ever lived. Most of the recorded names are 
probably purely mythical. Tradition is of no value when 
it has a fable for its source. Names of indefinite antiquity 
are assumed by comparatively recent writers, or editors, 
or collectors of texts. Even when we can ascertain the 
sequence of certain works, it is unsafe to assume that any 
statement of law represented an existing fact. To a Hindu 
writer, every sacred text is equally true. Maxims, which 
have long since ceased to correspond with actual life, are 
reproduced, either without comment, or with a non-natural 
interpretation. Extinct usages are detailed, without a sug- 
gestion that they are extinct, from an idea that it is sacrile- 
gious to omit anything that has once found a place in Holy 
Writ. In short we have exactly the same difficulty in deal- 
ing with our materials as a palaeontologist would find, if 
all the archaic organisms which he compares had been 
discovered, not reposing in their successive strata, but 
jumbled together in a museum. 

SruH and § 16. The two great categories of primeval authority are 

the Sruti and the Smriti. Somewhere in the order of pre- 
cedence, either between the Srutis and the SmritiSy or more 
probably after them, come the Pm*anas, which, according 
to Colebrooke, ** are reckoned as a supplement to the 
Scripture, and, as such, constitute a fifth Veda ** (6). The 
Sruti is that which was seen or perceived in a revelation, 
and includes the four Vedas. The Smriti is the recollec- 
tion handed down by the Eishis, or sages of antiquity (c). 
The former is of divine, the latter of human, origin. Where 
the two conflict, if such a conflict is conceivable, the latter 
must give way. Practically, however, the Sruti has little, 
or no, legal value. It contains no statements of law, as such, 
though its statements of facts are occasionally referred to 

lb) Per Makmood, /., Oanga Sahai y. Lekhraj Singh^ 9 All., p. 289. 
(c) Mana, ii., §§ 9, 10 ; W. <^ B., 25 ; JoUy, Reoht n. Sitte, 2. 

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Smriti. 



PARAS. 16 & 17.] THE SMRITIS. 15 

as conclusive evidence of a legal usage. Rules, as distinct 
Irom instances, of conduct are, for the first time, em- 
bodied in the Smriti. The Smriti, again, are found on 
examination to fall under two heads, viz., works written 
in prose, or in prose and verse mixed, and works written 
wholly in verse. The latter class of writings, being fuller 
and clearer, are generally meant when the term Smriti is 
used ; but it properly includes both classes. To Professor 
Max Miiller we owe the important generalisation that the 
former, as a rule, are older than the latter. His views 
may be summarised as follows (d). 

§ 17. The first duty of a Brahman was to study the Sutras, 
Vedas. These were orally transmitted for many ages 
before they were committed to writing, and orally taught, 
as they are even at the present time (e). Naturally many 
various versions of the same Veda arose, and sects or 
schools were formed, headed by distinguished teachers, 
who taught from these various versions. To facilitate 'their 
teaching they framed Sutras or strings of rules, chiefly in 
prose, which formed rather a memoria technica by which 
the substance of the oral lessons might be recalled, than a 
regular treatise on the subject. Every department of the 
Vedas had its own Sutras. Those which related to the 
rules of practical life, or law, were known as the Dharma- 
Sutras, and these last again were as varied as the sects, or 
Charanas, from which they originated, and bore the names 
of the teachers by whom they were actually composed, or 
whose views they were supposed to embody. Thus the 
Dharma-Sutra^f which bear the name of Apastamba, Baud- 
hayana, Gautama and the like, contain the substance of the 
rules of law imparted in the Charanas which recognized 
those teachers as their heads, or which had adopted those 
names. Works of this class are known to have existed 
more than two hundred years before our era. Professor . 

{d) See his letter to Mr. Morley, 1 M. Dig. Introd., 196 ; A. 8. Lit., pp. 125— 
lS4.2fiO, 377;W. &B.. 31. 
(«) See as to the introauction of writing, A. S. Lit., 497; Ind. Wisdom, 252. 



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16 SOUKCES OP HINDU LAW. [cHAP. II, 

Max Miiller places the Sutra period roughly as ranging 
from B.C. 600-200. But the composition of these works 
may have continued longer, and it cannot be asserted of 
any particular Sutra now in existence that it is of the age 
above specified. 

^sute^* °' § 18. The Dharma-Sutras, which bear the names of Gau- 
tama, Baudhayana, Apastamba,Vasishtha and Vishnu have 
been translated, the last named by Dr. Jolly and the others 
by Dr. Biihler (/ ) . As to their relative antiquity, Gautama 
is the oldest of all, being quoted by Baudhayana who ranks 
next in order of time. He belonged to the school of the 
Sama Veda. His use of the word Yavana, a term applied 
in very early Indian parlance to the Greeks, has been 
supposed to mark his period as not earlier than 300 B.C. 
The word, however, appears to have had other applications, 
and Dr. Biihler considers that it would be unsafe to found 
any opinion upon its use. At present nothing else is known 
by which the date of Gautama can be even approximately 
fixed ig). Next in point of time is Baudhayana. His Sutras 
were originally studied by the followers of the Black Yajur- 
veda alone, but subsequently were accepted by all Brah- 
mans as an authority on the Sacred Law. He was 
probably of Southern origin. Dr. Biihler considers that 
a period counted by centuries elapsed between his date 
and that of Apastamba, whom he places before the first 
century B.C. (h). Apastamba was also an inhabitant of 
Southern India, probably of the Andhra district, and a 
follower of the same Veda as Baudhayana. He is re- 
markable for the uncompromising vigour with which 
he rejects certain practices recognized by the early 
Hindu Law, such as the various species of sons, the 
Niyoga and the Paisacha form of marriage (i). Ex- 

(/) Sacred Books of the East, Vols. II., VII and XIV. 

la) BUhler's lutroduction to Gautama, 45, 49, 56 ; Jolly, Reoht u. Sitte, 5. 

(ft) BUhler's Introduction to Baudhayana. 29, 85, and to Apastamba, 18,!22, 40. 
Dr. Jolly con<«iders that the 4th Pnibna of Baudlmyara, which is almost wholly 
written m verse, is probably a later addition, and that the 8rd is also open to 
suspicion, Recht n. Sitte, 4. 

(f) BUhler's Introduction to Apastamba, 16, 18,30, 84 ; Jolly, Recht n. Sitte, 8. 



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PARA. 18.] THE SMRITIS. 17 

cept from quotations contained in his work there is 
nothing to show the date of Vasishtha. He knew of 
Yama, Gautama, Harita, and a Manu, the author of the 
Manava Sutras. He may perhaps be supposed to have 
known Baudhayana. Dr. Jolly considers that he quoted 
from Vishnu, but in this opinion Dr. Biihler differs from 
him. Vasishtha appears to have been a native of the 
Northern part of India (ft). No tradition exists as to the 
authorship of the Vishnu-Sutra. Dr. Biihler and Dr. Jolly 
agree in thinking that in its present form it has "been 
recast with additions by those who, ignorant of its origin, 
wished to attribute it to the God Vishnu. Much of the 
work, both in style and substance, bears the mark of 
extreme antiquity, and portions of it are thought by 
Dr. Jolly to have been borrowed by Vasishtha or even 
by Baudhayana. He, like Vasishtha, was a follower, of 
the black Yajur-veda (I). Harita, Hiranyakesin, U9anas, 
Yama, Ka^yapa and Qankha, all of whom are quoted in 
Colebrooke's Digest and by the commentators, are also 
of the Sutra period. Of these Harita is earlier than Baud- 
hayana, and Hiranyiikesin is later than Apastamba (m). 

A manuscript of Harita has lately been found at Nasik. 
From the account of it given by Dr. Jolly, it would 
appear to contain much which, in language and subject, 
evidences great antiquity, combined with passages on 
the law of debts and on judicial procedure which are 
quite of a modern character. Not only, therefore, is the 
manuscript untrustworthy- in much which it contains, 
but it is thoroughly defective in what it ought to contain. 
Numerous quotations from Harita, which are found in 
Baudhayana and Apastamba, and even in Hemadri, a 
writer of the 13th century, are wanting in the Nasik 
copy. Harita is supposed by Dr. Jolly to be the earliest 
of the Smritis. The genuine portion of the manuscript 

(k) Bauer's Introduction to VasiBhtha, 16, 17, 21, 25 ; JoUy, Beoht n. Sitte, 6. 
(Z) Dr. JoUj's Introduction to Vishnu. Lectures, 88. W. & B., 86. 
(m) BtUiler's Introduction to Apastamba, 28, 27. 

2 



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18 SOURCES OP HINDU LAW. [CHAP. II, 

contains much upon ceremonial matters, moral precepts, 
impurity, penance and the like : but it does not lead us to 
suppose that we should derive from the complete work 
anything of a legal character, except, perhaps, indications 
of the dawning of secular law (n). 
DiMrma-Sastras § 19, The Dharma-Sastras, which are wholly in verse, 

generally more " . ./ » 

recent. Professor Max Miiller considers to be merely metrical ver- 

sions of previously-existing Dharma-Sutras. Dr. Blihler, 
after pointing out " that almost in every branch of Hindu 
science, where we find text-books in prose and in verse, 
the latter are only recent redactions of works of the 
former class,** proceeds to say : ** This view may be sup- 
ported by some other general reasons. Firstly, if we 
take oflf the above-mentioned Introductions, the contents 
of the poetical Dharma-Sastras agree entirely with those 
of the Dharma-Sutras, whilst the arrangement of the 
subject-matter differs only slightly, not more than the 
Dharma-Sutras differ amongst each other. Secondly, the 
language of the poetical Dharma-Sutras and Dharma- 
Sastras is nearly the same. Both show archaic forms, 
and in many instances the same. Thirdly, the poetical 
Dharma-Sastras contain many of the Slokas or Gathas 
given in the Dharma-Sutras, and some in an apparently 
modified form. Instances of the former kind are exceed- 
ingly numerous. A comparison of the Gathas from 
Vasishtha, Baudhayana, Apastamba and Hiranyakesin 
with the Manu Smriti, shows that more than a hundred 
of the former are incorporated in the latter.** And he 
goes on to point out other instances in which passages 
of Manu are only modernised versions of passages now 
existing in Vasishtha*s Sutra. In one case Manu (viii., 
§ 140) quotes Vasishtha on a question of lawful interest, 
and the passage so quoted is still extant in the Sutras 
of that author. The result in Dr. Buhler*s opinion is 
that " it would seem probable that Dharma-Sastras, like 
that ascribed to Manu and Yajnavalkya, are versifica- 



(n) Recht u. Sitte, 8. 



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PARA. 19 & 20.] THE SMRITIS. 19 

tions of older Sutras, though they, in their turn, may 
be older than some of the Sutra works which have 
come down to our times*' (o), A third work of a 
similar class is that known by the name of Narada. All 
of these are now accessible to English readers (p). As to 
relative age they rank in the order in which they are named. 
Their actual age is a matter upon which even proximate 
certainty is unattainable. 

§ 20. The Code of Manu has always been treated by u§an. 
Hindu sages and commentators, from the earliest times, as 
being of paramount authority, an opinion, however, which 
does not prevent them from treating it as obsolete whenever 
occasion requires (q). No better proof could be given of 
its antiquity. Whether it gained its reputation from its in- 
trinsic merits, or from its alleged sacred origin ; or whether 
its sacred origin was ascribed to it in consequence of its 
age and reputation, we cannot determine. The personality 
of its author, as described in the work itself, is upon its 
face mythical. The sages implore Manu to inform them of 
the sacred laws, and he, after relating his own birth from 
Brahma, and giving an account of the creation of the world, 
states that he received the Code from Brahma, and commu- 
nicated it to the ten sages, and requests Bhrigu, one of the 
ten, to repeat it to the other nine, who had apparently for- 
gotten it. The rest of the work is then admittedly recited, 
not by Manu but by Bhrigu (r). Manu, the ancestor of 
mankind, was not an individual, but simply the impersonal 

(o) w. & B., 42. 

(p) YajnavaJkya has been wholly translated in German by Professor Stenzler 
(1849). An English translation of the whole of the second Book, and of part of the 
first, has been made by Dr. Roer (Calcutta, 1859). The entire work has lately 
been translated by Mr. V. N. Mandlik rBombay, 1880). Vrihaspati, whom 
Dr. Buhler classes in the same category, is only known by fragments cited by 
the commentators, and by Js^annatha in his Digest. 

iq) See Preface by Sir W. Jones, p. 11, and general note at the end, p. 363 
(London, 17%). V. N. Mandlik, Introduction, 46. Per curiam, 14 M. I. A., 
570. Not only is Manu revered by the Hindu lawyers, but he is referred to as 
of supreme weight by the Buddhist writers of Burmah, Siam and Java. Jolly 
Kecht u. Sitte, 41—44. 

(r) Manu, i., § 1—60, 119 ; iii., § 16; viii.. § 204 ; xii., § 1. This fiction of recital 
by an early sage is a sort of common form in Hindu works of no great antiquity. 
W. & B., Introd., 24 (2nd ed.). 



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90 SOURCES OP HINDU LAW. [CHAP. II, 

and representative man. What is certain is, that among 
the Brahmanical schools was one known as the school of 
the Manavas, and that they used as their text for teaching a 
series of Sutras, entitled the Manava-Sutras. The Dharma- 
Sutras of this series are unfortunately lost, but it may 
be supposed that they were, to a great extent, the concen- 
trated essence from which the Manava Dharma-Sastras 
were distilled. Whether the sect took its name from a 
real teacher called Manu, or from the mythical being, can- 
not now be known (s). 

Hi» age. g 21 . The age of the work in its present form is placed by- 

Sir W. Jones at 1280 B.C. ; by Schlegel at about 1000 B.C. ; 
by Mr. Elphinstone at about 900 B.C. ; and by Professor M. 
Williams at about the 5th century B.C. (t). Professor Max 
Miiller would apparently place it as a post- Vedic work, at a 
date not earlier than 200 B.C. (w). One of his reasons for 
this view, viz,, that the continuous slokas in which it is 
written did not come into use until after that date, has been 
shown not to be beyond doubt, as Professor Goldstiicker has 
established their existence at an earlier period (u) . In order 
to determine the question of age, it is necessary to settle 
whether the present rescension of Manu is the earliest or 
the latest of the many which undoubtedly existed. The 
introduction to Narada states that the work of Manu origi- 
nally consisted of 1,000 chapters and 100,000 slokas. Narada 
abridged it to 12,000 slokas, and Sumati again reduced it 
to 4,000. The treatise which we possess has been supposed 
to be a third abridgment, as it only extends to 2,685. We 
also find a Vriddha, or old, Manu quoted, as well as a Brt- 
hantf or great, Manu (w). Further, while the existing Manu 
quotes from Vasishtha a rule which is actually found in his 



Tarions Ter- 



(a) A. S. Lit., 532 ; 1 M. Dig. Introd., 197 ; Ind. Wisd., 213; Jolly, Lect. 47, 
Bechi u. Sitte ; 18 Biihler's Introduction to Manu, 14, 40, 91, 67, 68. 

{t) Ind. Wisd., 216 ; Elphinstone, 227 ; Stenr. Pref . to Yajnavalkya, 10. 

(u) A. S. Lit., 61, 244. (t,) ^. & B., 49. 

{w) Dr. Jolly shows that these epithets have no historical significance, and 
that in general the authors to whose names they are appended are more reoent 
han those with the same names and without the epithet, Lect, 65. 



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PARA. 21.] THE SMRITIS. 21 

treatise, Vasishtha in turn quotes from Manu verses two of 
which are found still, and two of which are not found, one 
of these latter being in a metre unknown to our Manu. 
Obviously, the interval between the Manu quoted by 
Vasishtha, and the Manu who quotes Vasishtha, must be 
very considerable. Further, Baudhayana quotes Manu 
for a proposition exactly the reverse of that now stated by 
him (ix., § 89). Even in a work so late as the 6th cen- 
tury A.D. verses are cited from Manu which can only be 
found in part in the existing work. The same fact would 
be apparent, as a matter of internal evidence, from the con- 
tradictions in the code itself. For instance, it is impossible 
to reconcile the precepts as to eating flesh-meat (x)y or as to 
the second marriage of women (y). Even as regards men, 
some passages seem to indicate that a man could not marry 
again during the life of his first wife, while in others second 
marriages are expressly recognized and regulated {z). So 
the texts which refer to the marriage of a Brahman with a 
Sudra woman (a), and to the procreation of children upon a 
widow for the benefit of the husband (6), are evidently of 
different periods. In former treatises Dr. Biihler had been 
disposed to accept the view that the Manu which we possess 
was the most recent form of the work. In the introduction 
to his present translation, he has examined the whole ques- 
tion again and has reached a different result. He considers 
that the Manu which we now possess was a compilation 
founded partly on a Sutra work of the Manava school of 
very much greater antiquity and partly upon a floating mass 
of proverbial wisdom which already existed in metrical form. 
From this latter source the compiler, Manu, and the author 
of the Mahabharata (3rd to 5th century a.d.) drew indepen- 
dently of each other, though, in some instances, the Maha- 
bharata appears to have borrowed directly from the present 
Manava-Smriti, which it distinctly names. Further, he 

ix) Manu. iv., J 260 ; t., § 7-67 ; xi.. § 156-169. 

{y) Manu. v., § 167, 160—166 ; ix., § 66. 76, 176, 176, 191. 

(«) Manu, v., § 167 ; viii., § 204 ; ix., § 77-87, 101, 102. 

(a) Manu. Hi., $ 13—19 ; ix., § 148-166, 178 ; x., § 64—67. 

(6) Manu, ix., § 66—66, 120, 148, 162-166, 167, 190, 191, 203. 



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22 SOURCES OP HINDU LAW. [CHAP. 11^ 

relies on the discovery first made by Dr. Jolly that the 
Dharma-Sastra of Vrihaspati (Circ. 600, A.D.), of which 
only fragments now exist, was fomided on a text of Manu 
apparently the same as that which we have. On the whole,. 
he arrives at the conclusion that Bhrigu*s Samhita is the 
first and most ancient recast of a Dharma-Sastra, attributed 
to Manu, which latter must be identified with the Manava 
Dharma-Sutra. Though this recast must be considered 
the work of one hand, the possibility that single verses may 
have been added later or altered is of course not excluded. 
The age of this version he places between the 2nd century 
B.C., and the 2nd century a.d. (c). 
Tainanilkya. § 22. Next to Manu in date and authority is Yajnavalkya. 

No Sutras corresponding to it have been discovered, and 
the work is considered by Professor Stenzler to have been 
founded on that of Manu. It has been the subject of 
numerous commentaries, the most celebrated of which is 
the Mitakshara, and is practically the starting point of 
Hindu law for those provinces which are governed by 
the latter. Of the actual author nothing is known. A 
Yajnavalkya is mentioned as the person who received the 
White Yajur-veda from the Sun, and this mythical per- 
sonage is apparently put forward as the author of the law 
book. Of course the two works are widely distant in point 
of time, but Dr. Biihler is disposed to think that the 
Dharma-Sastras, known by the name of Yajnavalkya, may 
have been based on Sutras which proceeded from the 
school which followed the Vedic author, or perhaps even 
from that author himself (d). This, of course, is mere 
conjecture. As in the case of Manu, an " old *' and a 
"great*' Yajnavalkya are spoken of, evidencing the exis- 
tence of several editions of the same work. Its date can 
only be determined approximately within wide limits. It 
is undoubtedly much later than Manu, as is shown by 
references to the worship of Ganesa and the planets, to 

(c) BUhIer*8 Inirodoction toManu75— 90, 92—117. Introduction to Vasiahtha 
18— aO: Jolly, Lect. 60 ; Recht u. Sitte, 14—18, 21. 

(d) Yaj., 1., § 1 ; iii., § 110; A. S. Lit., 329; W. A B., 47. 



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PABAS. 22 & 23.] THE SMBITIS. 23 

the use of deeds on metal plates, and the endowment of 
monasteries, while other passages, speaking of bald heads 
and yellow robes, are supposed to be allusions to the 
Buddhists (e). Professor Wilson points out that "pass- 
ages taken from it have been found on inscriptions in 
every part of India, dated in the 10th and 11th centuries. 
To have been so widely diffused, and to have then attain- His age. 
ed a general character as an authority, a considerable 
time must have elapsed, and the work must date therefore 
long prior to those inscriptions.*' He considers that the 
mention of a coin, Nanaka, which occurs in Yajnavalkya, 
refers to one of the coins of Kanerki, and therefore 
establishes a date later than 200 a.b. This inference, 
however, is considered by Professor Max Miiller to be very 
doubtful. Passages from Yajnavalkya are found in the 
Panchatantra, which cannot be more modern than the 
end of the 5th century, (/), and it is quoted wholesale in 
the Agni Purana, which is supposed to be earlier than 
the 8th century (g). It seems therefore tolerably certain 
that the work is more than 1,400 years old, but how 
much older, it is impossible to state (h). 

§ 23. The last of the complete metrical Dharma-Sastras Norads. 
which we possess is the Narada-Smriti, which has been 
recently translated by Dr. Jolly. The work, as usual, is 

{e) Yftj.. i., § 270, 271, 27-2, 284, 318; ii., § lad. 

(/) WiUon'8 Works, iv., 89. 

&) Wilaon's Works, iii., 87, 90. See Stenzler's Preface, 10 ; A. S. Lit., 830. 

(k) The above uoncloaions are sobstantially the lame as those arrived at by 
Mr. V. N. Mandh'k, in his Introduction, pp. 48—59. He sayn (p. 61): **From 
an examination of the Yajnavalkya Smriti and its comparison with others, I 
may rooffhly state that I consider it to be later than Manu, Vasishtha, Gauta- 
ma, <^ankha, Likhita, and Harita, nearly contiimuoranpous with Vishnu and 
prior to Parasara and others. It does nor- seem to nave at tmy one time formed 
the distinct basin of the Aryan law, like Manu, Gautama, (^ankha, LiVhita, and 
Parasara ; but as bearing the impress of the leading exponent of the doctrines 
of the White Yajur-veda, it formed the principal guide of the fifteen Sakhas of 
th*t Veda. These Sakhas, as we find from the Charana Vyaha and other 
authorities, have chiefly predominated in the countries to the North of the 
Narmada." At p. 49, he says: Y:ijnavalkya himself is only one of the numer- 
ous Smritikara, and his authority outside his own Sakha is of no peculiar im- 
portance." Thin latter fr^itement seems inconsistent with the fact that the 
commentators of every district of India refer to, and rely on, his authority. 
Dr. Jolly siyn : ** The composition of the metrical Smriti of Yajnavalkya can- 
not be referred to an earlier date than the first centuries A.n." Lect. 49. In his 
late work he places the probable dato somewhere about the 4th century a.d. 
Becht n. Sitte, 21. 



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24 SOURCES OF HINDU LAW. [cHAP. II, 

ascribed to the Divine sage Narada, and purports to have 
been abstracted by him from the second abridgment of 
Mann in 4,000 slokas. It differs from Manu, however, 
in many most important respects, which are enumerated 
by Dr. Biihler and Dr. Jolly. One point of even greater 
importance than any mentioned by them is the rank he 
gives to the adopted son. Manu places him third in the 
order of sons, and Narada places him ninth, thereby ex- 
cluding him from the list of collateral heirs (i). It is, of 
course, possible, and I think probably, that in this respect 
Narada may be really following what was the original and 
genuine text of Manu. With this exception, if it be one, 
the whole of Narada is marked by a modern air as com- 
pared with Manu. Some of his rules for procedure in par- 
ticular seem to anticipate the English principles of special 
pleading (k). The same mode of comparison also estab- 
lishes that Narada is more recent than Yajnavalkya. On 
the other hand, his age is so much greater than that of the 
Mitakshara that he is not only quoted throughout that 
work, but quoted as one of the inspired writers. His views 
also appear to be of a more ancient character than those 
announced by Katyayana, Vrihaspati, Yama, and other 
His age. Smritis referred to by the commentators. The result, ac- 

cording to Dr. Jolly, is that the Narada-Smriti should be 
placed about the 5th or 6th centmy, or perhaps a little 
later ; that is to say, about midway between Yajnavalkya 
and the time when the Smritis ceased to be composed. 
Dr. Biihler has recently made the interesting discovery of 
a fragment of a larger rescension of Narada than the one 
translated by Dr. Jolly. It is evidently the edition which 
was used by the earliest commentators, as it contains texts 
ascribed by them to Narada which are not found in the 
existing and abridged form of the work. Unfortunately 
the fragment does not extend beyond v. 19. Narada is 
supposed by Dr. Jolly to have been a native of Nepal (0. 

(t) Manu, iz., $ 159; Nar., xiii., § 46. {k) See Nar., i., $ 50—67. 

(/) Jolly, Lect. 64; Reeht a. Sitte, 21. 



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PARA. 24.] SOURCES OP HINDU LAW. 25 

§ 24. Fragments of many metrical Dharma-Sastras, Fngmentiury 
which are now lost, are to be found in the writings of 
commentators and in Digests. The most ancient and 
important of these are the verses of Vrihaspati and 
Katyayana. Both appear to belong to nearly the same 
epoch, probably about the 6th or 7th century, and to be 
founded upon Manu, with such enlargements and develop- 
ments as a later form of society demanded (m). Of still 
later date is a class of Smritis, which are described by 
Dr. Bdhler as ** secondary redactions of metrical Dharma- ^^^^"^ 
Sastras." Under this head he enumerates " the various 
Smritis which go under the names of Angiras, Atri, 
Daksha, Devala, Prajapati, Yama, Likhita, Vyasa, Sankha, 
Sankha Likhita, Vriddha-Satatapa. All these works are 
very small and of little significance. That they are really 
extracts from, or modern versions of, more extensive 
treatises, and not simply forgeries, as has been supposed, 
seems to follow from this, that some of the verses quoted 
by the older commentators of Yajnavalkya and Manu, 
such as Vijnanesvara, are actually found in them, whilst 
they cannot be the original works which those lawyers 
had before them, because other verses quoted are not 
found in them. In the case of the Vriddha-Satatapa 
Smriti, the author himself states in the beginning that he 
only gives an extract from the larger work" (n). Of 
course, the texts contained in these works may be very 
ancient, though the editions which contain them are com- 
paratively modern. Many of the names in the above list 
are actually enumerated by Yajnavalkya as original sources 
of law (o). They must, therefore, have existed, though 
not in their present shape, long before his time. Dr. Jolly 
treats it as " certain that the most recent metrical Smriti 

(m) Jolly, Lect. 60—64 ; Plecht u. Sitte, 26. 

{n) W. & B.. 50 For com|'lete list of the SmritiH, see ihid., 13 ; I Mori. Dig., 
193 ; Stokes, H. L. B., 6 ; lud. Wisd., 21t ; V. N. Mnndlik, xiv. ; Jolly, Lect. 51 ; 
Becht u. Sitte, 23. 

(o) " MaDU, Atri, Vishnu, Harita, Yajnavalkya, Usanas, Angiras, Yama, 
ApHstambft, Samvarta, Katyayana, Vrihaspati, Parasara, Vyasa. Sankha Lik- 
hita, Dakshft, Gautams\, Satatapa, and Vasishtha, are they who have promal- 
gated Dharma-Sastras." Yaj., i., $ 4, 5. See an elaborate examination of these 
works. V. N. Mandlik, Appx. I. 



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26 SOURCES OF HINDU LAW. [cHAP. II, 

fragments must be older than the 11th and 12th centuries, 
in which most of them are quoted as inspired writers by 
Vijnanesvara and Apararka, and older for the most part 
even than the 8th or 9th century in which many of them 
are quoted by Medhatilhi" {p). 

tiS^^ ®' § 25. II. The Commentators. — All the works which come 
mider the head of Sraritis agree in this — that they claim, 
and are admitted to possess, an independent authority. 
One Smriti occasionally quotes another, as one judge cites 
the opinion of another judge, but every part of the work 
has the same weight, and is regarded as the utterance of 
infallible truth. No doubt these Smritis exhibit the greatest 
difference in their statements, owing to the lapse of time, 
and, probably, in part to local peculiarities. Parasara, one 
of the latest of this class, recognized this difference, and its 
cause, and is recorded as laying down that the Institutes 
of Manu were appropriate to the Krita Yuga, or first age ; 
those of Gautama to the T relay or second age ; those of 
Sankha and Likhita to the Dvaparaj or third age ; and his 
own to the Kcdiy or sinful age, which still continues (g). 
Unhappily the legal portion of his work, which we may 
imagine was founded on some attempt at historical prin- 
ciples, has disappeared. Later writers assume that the 
Smritis constitute a single body of law, one part of which 
supplements the other, and every part of which, if pro- 
perly understood, is capable of being reconciled with the 
other (r). To a certain extent this may, perhaps, be true, 
as none' of the Dharma- Sutras, or Dharma-Sastras, pur- 
port to cover the whole body of law (s). But the variances 
between them are not, and could not in the nature of things 
be, reconcilable. The unquestioning acceptance of the 

Their antiquity, whole mass of Smritis in bulk could only arise — first, 
when their antiquity had become so great that the real 

~ (p) Jolly, Lect. 68. 

\q) 1 Stra. H. L. Prof., 12. Manu, as we now possess it, mentions all four 
•ge«», i.. § 81—86. 

(r) It Heems doubtful whether Manu considered that any texts, except those 
of the Vedas, were necessarily true, and therefore reconcilable. See ii., § 14, 16. 
a) W. <Sc B. (2ud ed.), Introd., », 32 ; Stenz. Preface. 6. 



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PABAS. 25 & 26.] THE COMMENTATORS. 



27 



facts which they represented had been forgotten, and 
that a halo of semi-divinity had encircled their authors ; 
and, secondly, when the existing law had come to rest 
on an independent foundation of belief, so as to be able 
to maintain itself in defiance of the authorities on which 
it was based. A direct analogy may be found in modern 
theology, where systems of the most conflicting nature 
are all referred to the same documents, which are equally 
at variance with each other and with the dogmas which 
they are made to support. 

§ 26. The earliest commentary on Yajnavalkya is that visvanipft. 
of Visvarupa. " The author of the Mitakshara at the very 
begiiming of his work says that Yajnavalkya Smriti had 
before his term been explained at length by Visvarupa in 
words rather difficult to understand." His commentary is 
about two centuries older than that of Vijnanesvara. Till 
very lately it was supposed to be lost, but quite recently a 
copy was discovered in Malabar, which has been translat- 
ed and published by S. Sitarama Sastri, a learned Vakil at 
the Madras Bar (t), who made it known to me. 

Far the weightiest of all the commentaries is that by Vij- 
nanesvara, known as the Mitakshara (w). Its authority is 
supreme in the city and province of Benares, and it stands 
at the head of the works referred to as settling the law in 
the South and West of India. It is the basis of the works 
which set out the law in Mithila. In Bengal alone it is, 
to a certain extent, superseded by the writings of Jimut 
Vahana and his followers, while in Guzerat the Mayukha 
is accepted in preference to it, in the very few points on 
which they differ (v). The age of Vijnanesvara has been 

(t) Visv&ropii. Preface. 

(u) The portion of this work, which treats of Inheritance, is familiar to 
stadeote by Mr. i^olebrooke'a translation. The portion on Judicial Procedure 
htts been translated by Mr. W. MacNaghten, and forms the latter part of the first 
Tolame of bis work on Hindu law. A table of contents of the entire work will 
be found at the end of the first volume of Borrodaile's Reports (folio 1826). 

(v) Colebrooke's note, 1 Stra. H. L., 817 ; W. * B., 10; Kriahnaji v. Pandu- 
rang, 12 Bom. H. C, 65 ; Collector of Madura v. Moottoo Bamalinga^ 12 M. I. A., 
437; S. C, 10 Soth. (P. C), 17; S. C, 1 B. L. R. (P. C), 1 ; OridhaH Lai v. 
Government of Bengal, 12 M. I. A., 448; S. C, 1 3. L. R. (P. C), 44 ; Jagannath 
JPrasad v. Banjit Singh, 25 Cal., p. 367. 



MitakBhara. 



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28 SOURCES OF HINDU LAW. [cHAP. II, 

fixed by recent research to be the latter part of the 11th 
century (w). His work is followed, with occasional, 
though slight, variances, by the writers to whom special 
weight is attributed in the other provinces. 

Aporarka. Another commentator of little later date than VijnancJs- 

vara is Apararka, a sovereign who reigned in the Konkan 
between 1140 and 1186. His views are very similar to 
those of the Mitakshara, which, however, he never 
mentions by name. His work is of paramount authority 
in Kashmir, and is referred to with respect by many of 
the later digests. A portion of it, stating the order 
of succession, has been translated by Mr. Eajkumar 
Sarvadhikari (x). 

AnthoritiM in § 27. The principal of the supplementary works in 
* Southern India are the Smriti Chandrika, the Daya-Vib- 
haga, the Sarasvati Vilasa, and the Vyavahara Nirnaya (y). 
The Smriti Chandrika was written by Devanda Bhatta 
during the existence of the Vijayanagara dynasty in the 
Deccan, and his date is stated by Dr. Burnell and by Dr. 
Jolly to have been about the middle of the 13th century. 
Bajkumar Sarvadhikari places him a century earlier. 
The only translation as yet published is that by Kristna- 
sawmy Iyer, Madras, 1867. Dr. Goldstiicker is stated 
by Dr. Burnell {z) to have left an edition and translation 
ready for the Press ; but it appears never to have been 
printed. The Sarasvati-Vilasa was written in the begin- 
ning of the 16th or, according to Mr. Bajkumar Sar- 
vadhikari, early in the 14th century by Pratapa Buda 
Deva, one of the kings of Orissa. It has recently been 
translated by the Bev. Mr. Foulkes (a). To Dr. Burnell 
we owe translations of the two other works above 
mentioned. The Daya-Vibhaga was written by Madha- 
viya, who was prime minister of several kings of the 

iw) w. & B., 17. 

(«) Sarvadhikari, 426 ; W. & B.. 18 ; Jolly, Lect. 13. 

(y) See Collector of Madura v. Moottoo Ratnalingay ant«, § 96, note {v.) 

{z) Pref . to Varadraja. 

(a) Foulkes' Preface to Sarabvati-Vilasa, vii. 



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PARAS. 27 — 29.] THE COMMENTATORS. 29 

Vijayanagara dynasty, and who flourished during the latter 
half of the 14th century. The Vyavahara-Nirnaya was 
written by Varadaraja, of whom his editor remarks : ** it is 
impossible to say any more than that he was probably a 
native of the Tamil country, and lived at the end of the 
16th or beginning of the 17th century.** 

§ 28. The works which supplement the Mitakshara in Western India. 
Western India are the Vyavahara Mayukha, and the Vira- 
mitrodaya. Of these, the Mitakshara ranks first and para- 
mount in the Maratha country and in Northern Kanara, 
and Ratnagiri, while in Guzerat, and apparently also in the 
Island of Bombay, the Mayukha is considered as the over- 
ruling authority when there is a difference of opinion (6). 
In Ahmednagar, Poona and Khandesh the Mayukha 
appears to be an authority equal to, though not capable 
of, over-ruling the Mitakshara (c). The Mayukha has 
been translated by Mr. Borrodaile, and quite recently by 
Mr. V. N. Mandlik. It is written by Nilakantha, whose 
family appears to have been of Mahratta origin, but settled 
in Benares. He lived about 1600 a.d., and his works came 
into general use about 1700. The Viramitrodaya was 
written by Mitra Misra, and, like the Mayukha, follows the 
Mitakshara in most points. Its composition may be as- 
signed to the beginning of the 17th century (d). It has 
lately (1879) been translated by Golapchandra Sarkar 
Sastri. It is rather a Benares than a Bombay authority, 
and of inferior weight to the Mayukha inWestern India (e). 
Other works of authority in Western India are mentioned 
by Dr. Biihler in his Introduction, but being untranslated 
I have not referred to them any further. 

§ 29.InMithila(orTirhutandNorthBehar) theMitak- Mithiia. 

(6) W. & B , 89, 11, 19 ; KrUhnaji v. Pandurang, ante, § 26, note (v) ; Lallu- 
bhair. Mankvvarbait 2 Bom.f as ; Balkrishna y. Lakahman, 14 Bom, 606; 
Janki Bai v. Sundra, ib.^ 612, 623. Tlie Mayukha is also said to bo an authority 
paramount to the Mitakshara in the North Konkan. Sakharam t. Sitabaif 3 
Bom., 368 ; Jankibai r. Sundra, 14 Bom., 624. 

(c) Bhagirthi Bhai t. Kahnujirav, 11 Bom., 285, 394. 

id) W. A B., M. 

(0) Collector of Madura y. Jlfoo^^oo Bamalinga, 12 M. I. A., 488, 466, ante, 
S 26, note (o) ; Dhondu Ourav y. Oangabai, 8 Bom., 869. 



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30 SOURCES OP HINDU LAW. [cHAP. II, 

sharar is also an authority, fhough the pundits of that dis- 
trict appear to be in the habit rather of referring to the 
Vivada Chintamani and Vyavahara Chintamani of Vaches- 
pati Misra, whose laws they say ** are to this day venerated 
above all others by the Mithilas,** and the Batnakara and 
the Vivada Chandra (/ ) . The date of the first-named work 
is put by Mr. Colebrooke, writing in 1796, as ten or twelve 
generations previously, that is, about the middle of the 
15th century. The Vivada Chintamani has been translated 
by Prossonno Coomar Tagore. The Ratnakara has been 
translated by Golapchandra Sarkar Rastri. It purports to 
be composed by Chandesvara Thakkura, prime minister and 
son of another Prime Minister Viresvara Thakkura. He 
styled himself the Conqueror of the Chiefs of Nepal, and 
from internal evidence is shown to have flourished in a.d. 
1314. Of what king he was prime minister he vouchsafes 
no information. Of the other works, I only know the name. 

Treatises on § 30. The two Special works on adoption, t?i>., the Dat- 

taka Chandrika and the Dattaka Mimamsa, possess at 
present an authority over other works on the same subject, 
which is, perhaps, attributable to the fact that they became 
early accessible to English lawyers and judges from being 
translated by Mr. Sutherland. Mr. W. H. MacNaghten 
says of them (g) : "In questions relative to the law of 
adoption, the Dattaka Mimamsa and Dattaka Chandrika 
are equally respected all over India ; and, where they differ, 
the doctrine of the latter is adhered to in Bengal and by 
the Southern jurists, while the former is held to be the 
infallible guide in the provinces of Mithila and Benares." 
This statement was accepted by the Judicial Committee in 
the Ramnad case (A), and has no doubt largely added to the 
weight which the works would otherwise have possessed. 
On the other hand, Mr. V. N. Mandlik states positively, as 

(f) Jiutcheputty v. Rajund^sr, 2 M. I. A., 134, 146; Coleb. Pref. to Dig., 19. 

(a) W. MacN. Preface, xxiii. and p. 74. 

(h) Collecior of Madura v. Moottoo Ramalinga, 12 M. I. A., 437; S. C, 10 
Suth. (P. C), 17 ; S. C, 1 B. L. R. (P. C), 1. See also Rungama v. Atchama, 
4. M. I. A., p. 27. 



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PARA. 30.] THE COMMENTATORS. 31 

to the Bombay Presidency, that the Dattaka Mimamsa 
" was not even known to the people in original for many 
years after the publication of its translation under the 
auspices of Government. And now the people are guided 
by the Nimaya Sindhu, the Viramitrodaya, the Kaustubha, 
the Dharma Sindhu, the Mayukhas, and not by the 
Mimamsa or the Chandrika *' (t). Mr. W. H. MacNaghten 
had no special knowledge of Southern India. It is possible 
that he was equally mistaken as to the acceptance of these 
works in the Madras Presidency (k). Probably his belief 
that the Dattaka Chandrika was an authority in Southern 
India arose from his supposing that it was written by 
Devanda Bhatta, the author of the great southern work the 
Smriti Chandrika. But there seems strong reason to doubt 
this. The last verse of the original work expressly states 
that the author's name was Kuvera, but because the author 
avowed himself to be the writer of the Smriti Chandrika, 
which was supposed to be the well known production of 
Devanda Bhatta, the latter name was substituted by Mr. 
Sutherland in his translation (I), Now Mr.V. N. Mandlik 
points out that there were several works named Smriti 
Chandrika by different authors, and that there is strong 
internal evidence for supposing that the Dattaka Chandrika 
and the Smriti Chandrika of Devanda Bhatta were by 
different writers, while the influence possessed by the 

ii) V. N. Mandlik, Introduction, 73. See per Mahmood^ J., 9 All., 322. West 
and Buhler sav of the Dattaka Mimamsa and Dattaka Chandrika and the position 
to which they are entitled in Western India that " as sapplementary to the Mitak- 
gliara and Maynkha these may fairly be regarded as the pnncipal authorities," 
p. 861. In a Full Bench decision of the Bombay High Court the judges stated that 
the Dattaka Mimamsa and Dattaka Chandrika were regarded by the Court as the 
leading authorities on adoption, and they declined to allow the reasonings of 
Mr. Mandlik to alter the usage of the Court in that respect. Waman Baghupati 
T. Kriihnajit 14 Bom., 259. The same question, as to the weight to be ascribed 
to the^e works, arose still more recently in two cases from Allahabad. Beni 
Pra»ad r. Hardai Bihi, 14 All., 67. Bliagwan Singh v. Bhagwan Singh, 17 All. 
(F. B., 294), in both of which the two treatises were held to be of slight authority, 
while, in the latter. Edge, C. J., entered into an elaborate argument to pro7e 
that Nanda Pandita was not an authority at all in Benares. Both these cases 
were considered on appeal by the Judicial Committee, and in each it was held 
that, although caution was required in accepting their glosses where they 
deviate from, or add to the Smritis, it was clear that both works must be accepted 
as bearing high authority for so long a time that they have become embedded in 
tiie general law. 26 I. A., pp. 131, 161. 

(k) See Nelson's Scientific Study, 87 n., citiD(j a native of Madras on this point. 

(0 Stokes H.L. B., 662. 



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32 SOURCES OF HINDU LAW. [cHAP. II, 

former work in Bengal could only be accounted for by 
supposing that it was really written by Kuvera, who was 
a Bengal author (m), 

Nanda Pandita, the author of theDattaka Mimamsa, was 
a member of a Benares family, whose descendants of the 
ninth generation are stated by Mr. V. N. Mandlik to be 
still flourishing in Upper India. He must, therefore, have 
lived about 250 or 300 years ago {n). The Dattaka Chan- 
drika is said to be the earlier work, though, of course, the 
doubt, as to its authorship, makes it impossible to fix the 
date with certainty (o). 

A collection of texts on adoption from the Dattaka Mi- 
mamsa, the Dattaka Chandrika, and five other works on 
adoption has been published by Mr. P. C. Tagore (Calcutta, 
1867) under the title Dattaka Ciromani. It is not yet 
translated. Dr. Jolly, as an appendix to his lectures, has 
translated the most important passages of this work. 

AnthoritieBin § 31. In Bengal the Mitakshara, and the works which 
follow it, have no authority, except upon points where the 
law of that province is in harmony with the rest of India. 
In respect to all the points on which they disagree, the 
treatise of Jimuta Vahana is the starting point, just as that 
of Vijnanesvara is elsewhere. Little is known either of his 
identity or of his age. Mr. Colebrooke's suggestion that 
he may be identified with the founder of the dynasty of 
Cilahara in Western India is no longer tenable, as Cilahara 
himself has been proved to be a merely fabulous character. 
Many portions of his work are supposed to be a refutation 
of the Mitakshara, and he is expressly named and followed 
by Raghunandana, who lived in the beginning of the 16th 
century. On the other hand, he quotes the commentary of 



Bengal. 



(m) V. N. Mandlik, Introdaction, 73. In this opinion he is sapported by Dr. 
BUhler (W & B., 10 n.) and by Dr. Jolly. The latter writer says that, in the 
opinion of eminent Bengal pandits, the name Kuvera is itself merely a nom de 
plume, Jolly, Lect. 22. 

(n) V. N. Mandlik, Introduction, 72 and p. 488. 

(o) Jolly, Lect. 22,j>erBanerji, J., 17 AH., p. 813, Sntherland's Ptefaoe. Stokes 
H. L. B., 627. 



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PARAS. 31 & 32.] DIGESTS. 83 

Govindaraja, which was written in the 12th century. His 
date must lie between the 13th and 15th centuries (p). His 
authority must have been over-powering, as no attempt 
seems ever to have been made to question his views, except 
in minute details ; and the principal works of the Bengal 
lawyers, since his time, have consisted in commentaries on 
his treatise. Particulars of these works will be found in 
Mr. Colebrooke's Prefaces to the Daya Bhaga and to Jagan- 
natha's Digest. The Dayatatwa by Baghunandana has 
been translated by Golap Chandra Sarkar. The only other 
work of the Bengal school, which I know of in an English 
form, is the Dayk Krama-Sangraha by Sri Krishna Tarka- 
lankara, translated by Mr. Wynch. It is very modern, its 
author having lived in the beginning of the last century ; 
but it is considered as of high authority. It follows, and 
develops, the peculiarly Brahmanical views of the Daya 
Bhaga. 

Dr. Jolly suggests that the isolation of the Bengal school 
may be more apparent than real, and may be accounted for 
by the loss of many works quoted in the Daya Bhaga, which 
may have formed intermediate links between the Bengal 
doctrines and the teaching of the other schools. Many of 
his doctrines may be traced to texts which are controverted 
in the Mitakshara, and some are identical with those of the 
Mithila writers (q), 

§ 32. Before quitting this part of the subject, a few words 
should be said as regards two digests made under European 
influence. I mean the Vivadamava Setu, compiled at the 
request of Warren Hastings, and commonly known as 
Halhed's Gentoo Code, from the name of its translator ; 
and the Vivada Bhangamavay compiled at the instance of 
Sir William Jones by Jagannatha Turkapunchanana, and 
translated by Mr. Colebrooke, which is generally spoken of 
as Jagannatha*s or Colebrooke's Digest. The former work, Haihed's Code, 
in its English garb, is quite worthless. It was translated 

(p) Jolly, Lect. 22; Sarvodhikari (403). 
(q) JoUy, Lect. 25. 



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Digest. 



34 SOURCES OP HINDU LAW. [CHAP. II, 

by Mr. Halhed, not from the original Sanskrit, of which he 
was ignorant, but from a Persian version supplied to him 
by his interpreter, which Sir W. Jones describes as " a 
loose, injudicious, epitome of the original Sanskrit, in which 
abstract many essential passages are omitted, though seve- 
ral notes of little consequence are interpolated from a vain 
JagaimathA's idea of elucidating, or improving, the text *' (r). No such 
drawback exists in the case of the latter work, which was 
translated by one who was not only the greatest Sanskrit 
scholar, but the greatest Sanskrit lawyer, whom England 
has ever produced. But Mr. Colebrooke himself early 
hinted a disapproval of Jagannatha's labours as abounding 
with frivolous disquisitions, and as discussing together 
the discordant opinions maintained by the lawyers of the 
several schools, without distinguishing which of them is the 
received doctrine of each school, or whether any of them 
actually prevail at present. This feature drew down upon 
the Digest the criticism of being " the best law-book for a 
Counsel and the worst for a Judge *' (s). On the other hand, 
Mr. Justice Dwarkanath Mitter, who was of the greatest 
eminence as a Bengal lawyer, lately pronounced a high 
eulogium upon Jagannatha and his work, of whom he says : 
** I venture to affirm that, with the exception of the three 
leading writers of the Bengal school, namely, the author 
of the Daya Bhaga, the author of the Dayatatwa, and 
the author of the Daya-kramasangraha, the authority of 
Jagannatha Turkapunchanana is, so lar as that school is 
concerned, higher than that of any other writer on Hindu 
law, living or dead, not even excluding Mr. Colebrooke 
himself ** (t). It certainly seems to me that Jagannatha*s 
work has fallen into rather undeserved odium. As a 
repertory of ancient texts, many of which are nowhere else 
accessible to the English reader, it is simply invaluable. 
His own commentary is marked by the minute balancing 



(r) Pref. to Colebrooke 's Digest, 10. 



(8) Pref. to Digest, 11 ; Pref. to Day* Bhaga; 2 Stra. H. L., 176; Pref. to 
Stra. H. L., 18. 
(/) Kery Kolitany v. Moneeram, 13 B. L. R., 50 ; 8. C. 19 Sath., 394. 



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PARA. 33.] DIGESTS. 36 

of conflicting views, which is common to all Hindu lawyers. 
But as he always gives the names of his authorities, a very 
little trouble will enable the reader to ascertain to what 
school of law they belong. His own opinion, whenever it 
can be ascertained, may generally be relied on as represent- 
ing the orthodox view of the Bengal school. 

§ 33. The Mimamsa of Jaimini " consists chiefly of a Mimamsa. 
critical commentary on the Brahmana or ritual portion of 
the Veda in its connection with the Mantras.'* ** It does not 
concern itself, like the other systems, with investigations 
into the nature of Soul, Mind, and Matter ; but with a 
correct interpretation of the ritual of the Veda, and the solu- 
tion of doubts and discrepancies in regard to Vedic texts 
caused by the discordant explanations of opposite schools. 
Its only claim to the title of a philosophy consistsin its mode 
of interpretation, the topics being arranged according to 
particular categories (such as authoritativeness, indirect 
precept, etc.), and treated according to a kind of logical 
method, commencing with the proposition to be discussed, 
the Purvapaksha or prima facie and wrong view of the 
question, the Uttara-paksha a refutation of the wrong 
views, and the conclusion" (w). His age is unknown, but 
it must have been earlier than the Mitakshara, as passages 
from his works are referred to by Vijnaneswara as the 
Sutras of a venerable author (t?). Though primarily in- 
tended for exposition of the Vedas, the rules laid down by 
Jaimini have been considered by later writers as authori- 
tative in discussing doubtful questions of law (w). 

In Mr. Siromani's Commentary on Hindu law (x), he Rules of 
gives 26 rules of interpretation, many of them being such ^'®'P'®***»on. 



(u) Indian Wisdom, 108 : Mimamsa means inTOstigation of the meaning of the 
Veda. ib. 314, note. Jaimini's treatise is also spoken of as the Purva or earlier 
Mimamoa, in opposition to the Uttara or later Mimamsa by Vyasa. 

(v) Mit. I.. 1, § 10 ; I., 9, § 11 ; II., 1, § 84. 

(w) (Colebrooke's Transactions of Royal Asiatic Society, II., 467. Golapohandra 
Sarkar on adoption, 74. Cited 14 All , p. 71). It has been partly edited and 
translated by Dr. Ballaotyne; bat is practically inaccessible to any but Sanskrit 
•cholan. (x) Calcutta, 1886, pp. 47—64. 



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36 SOURCES OP HINDU LAW. [cHAP. II, 

as would be applied by any lawyer in the construction of a 
statute or document ; as for instance, that an apparent 
contradiction of texts is to be ascribed to their applying to 
different fields of law, or by supposing that the one contains 
the general rule, and the other a special rule, or, in a very 
extreme case, by holding that the matter in question is 
optional, to do or not to do. As regards that apparent 
balancing of conflicting opinions, which is so common 
among Hindu writers, he states that " if the same text is 
interpreted in different ways, in the same work, then the 
interpretation last proposed is to be accepted as correct in 
the opinion of the author.'* " If two reasons are given, in 
the same clause, for any particular proposition, the reason 
last given is said to be by way of Sadhak or additional 
support, and the last reason may be rejected.'' ** When, 
in order to establish any particular proposition, several 
reasons are given in successive clauses, each successive 
reason being preceded by such words as andf or, etc., then 
the reason last given is to be accepted as correct in the 
opinion of the author." 
jaimini's Rule. § 34. In a recent case, one of Jaimini's rules assumed ' 
great importance. The text to be interpreted was that of 
Vasishtha " Let no man give or receive an only son, since 
he must remain to raise up a progeny for the obsequies of 
ancestors." In reference to this text, Mr. Mandlik says 
(p. 499) : " It is a rule of the Purva-Mimamsa that all texts 
supported by the assigning of a reason are to be deemed 
not as vidhi (an injunction), but simply as artha-vada 
(recommendatory). When a text is treated as an arthu- 
vadaj it follows that it has no obligatory force whatever." 
Accordingly, in the case which turned upon this text, it was 
treated as having no binding authority. When the Judicial 
Committee had to deal with this matter in appeal, they say 
of Jaimini's rule : '* That if sound, would be conclusive as 
to Vasishtha's text. But it is rather startling, and a very 
intimate acquaintance with the Smritis would be needed 
before admitting its truth. It has not been brought for- 



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PARA. 34.] DIGESTS. 37 

ward in any case prior to this case from Allahabad. It 
may, however, fairly be argued that one who, having the 
power to give an absolute command, gives an injunction 
not expressed in unambiguous terms of absolute command, 
but resting on a reason, is addressing himself rather to the 
moral sense of his hearers than to their duty of implicit 
obedience'* (y). 

The rule, if finally accepted as a governing principle of Discussion of 
interpretation, would be of such a far-reaching character, ® *' 
that it may be advisable to examine whether such a novel 
and disturbing element should be added to the difficulties 
which aheady encompass every discussion upon Hindu law. 
It must be admitted that the rule does not carry its own 
evidence with it, like a rule of grammar. Nor can it be 
shown that it was ever accepted by the Eishis, to whose 
words it is applied, or that it was thought of by anybody 
before it was evolved by Jaimini. Nor can it rest on his 
personal authority, unless it can be shown that it has 
received general acceptance as part of the law of the 
- country. And here it is remarkable that during the present 
century, no previous instance can be produced in which 
it has been relied on by any pundit, or vakil, or Native 
Judge, though numberless CMes must have arisen in which 
it would have settled the controversy. It must, therefore, 
rest upon some obvious accordance with natural logic, and 
must apparently harmonise with the style of the early 
sages. In the case of a merely earthly judge, if he states a 
rule of law without anything more, his statement carries 
with it exactly the weight due to his authority. If he 
proceeds to say why he states the law to be so, his 
reasons can be discussed and rejected. But in the case 
of the early sages, who are either themselves Divine, 
or are speaking the language of the Deity, every word, 
whether rule or reason, is equally inspired, and is entitled 
to equal respect. It is still necessary to put a construc- 

(tf) BerU Prasad v. Hardai Bibi, 14 All., pp. 73, 106. 126 ; Radha Mohun v. 
Hardai Bibi. 26 I. A., p. 146 ; S. C, 21 All., 460. 



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88 SOURCES OP HINDU LAW. [CHAP. II, 

tion upon the words, and to see whether the speaker 
intended to order, or to advise. But it is difficult to see 
how an apparent order, which it is impossible to disobey, 
can be deprived of its character, because it is followed 
by a reason, which it is impossible to dispute. The 
second branch of the test would involve an exhaustive 
examination of all the Smritis. A few instances, however, 
lie upon the surface, which suggest a doubt as to the 
practical value of the rule. Probably the earliest Rishi, 
who spoke of a widow as heir to her husband, is Vrihas- 
pati. He states her right distinctly and positively, and 
then follows it up with the very satisfactory reason — ** Of 
him whose wife is not deceased half the body survives. 
How should another take the property, while half the 
body of the owner lives?" (z). So Manu gives a reason 
for the position which he assigns to the son of an appoint- 
ed daughter, and to the son of an ordinary daughter (a). 
No one, I suppose, doubts that these texts are mandatory. 
It is also to be remarked that, when a commentator cites 
a text which contains a reason, he generally leaves the 
reason out, as for instance, in quoting Vasishtha as to the 
adoption of an only son, and Vrihaspati as to the succes- 
sion of a widow (6). This would indicate that he did not 
suppose that the reason nullified the text. Apparently 
the reason was intended to strengthen the injunction, 
where the sage was stating a rule which had not been laid 
down by his predecessors. It is probable that Jaimini's 
principles of interpretation, which were intended to 
elucidate Vedic ritual, are incapable of universal appli- 
cation to secular law. 
Only two _ § 36. III. Different Schools of Law. — The term 

school of law," as applied to the different legal opinions 
prevalent in different parts of India, seems to have been 
first used by Mr. Colebrooke (c). He points out that there 

^{z) 3 Dig., 458. (a) Maun IX., 130, 133, 189. Jbykit. I., 11, § 11 ;Tl.rTl7§ 6 
(c) 1 Stra. H. L., 315. As to the mode in which such divergences sprung op, 
see the remarks of the Judicial < ommittee in the liamnad case, CoUecior of 
Madurav. Mootoo Ramalinga, 12 M. I. A.. 436 ; 8. C, 10 Suth. (P. C), 17 ; 8. C, 
IB. L. R. (P C), 1. 



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PARAS. 35 & 36.] DIP:frBRENT SCHOOLS OF LAW. 39 

really are only two schools marked by a vital difference of 
opinion, viz., those who follow the Mitakshara, and those 
who follow the Daya Bhaga. Those who fall under the 
former head are again divided by minor differences of 
opinion, but are in principle substantially the same. Of 
course in every part of India, though governed by practi- 
cally the same law, the pundits refer by preference to the 
writers who lived nearest to, and are best known to, them- 
selves ; just as English, Irish, and American lawyers refer 
to their own authorities, when attainable, on any point of 
general jurisprudence. This has given rise to the idea 
that there are as many schools of law as there are sets of 
local writers, and the sub-division has been carried to an 
extent for which it is impossible to suggest any reason or 
foundation. For instance, Mr. Morley speaks of a Bengal, 
a Mithila, a Benares, a Maharashtra, and a Dravida School, 
and sub-divides the latter into a Dravida, a Karnataka 
and an Andhra division (rf). So the Madras High Court 
and the Judicial Committee distinguish between the 
Benares and the Dravida schools of law (e), and a 
distinction between an Andhra and a Dravida School has 
also received a sort of (/wasi-recognition (/). On the other 
hand. Dr. Burnell ridicules the use of the terms Karnataka 
and Andhra, which he declares to be wholly destitute of 
meaning, while the term Dravidian has a very good 
philological sense, but no legal signification whatever. 
Practically he agrees with Mr. Colebrooke in thinking that 
the only distinction of real importance is between the 
followers of the Mitakshara and the followers of the Daya 
Bhaga (g). 

§ 36. In discussing this subject, it seems to me that we CauBesof 

; varianod. 

{d) 1 M. Dig. Xntrod., 221. In this he is supported by Mr. Rajknmar Sarva- 
dhikari ^p. 409), who (p. 334) traces the origin of divergent opinions on questions 
of law to the teaching of Srikara in the 11th century. 

(e) See the Ramnad adoption suit, 2 Mad. H. C, 206 ; 12 M. I A., 397, supra 
note (c). 

If) Narasammal v. BalaramacharlUj 1 Mad. H. C, 420. 
^ (g) Pref. to Varadarajah, 6 ; Nelson's View of Hindu Law, 21 : V. N. Mand- 
lik. Introdnction, 70. See the remarks of Mahmood, J., in Ganga Sahai v. 
Lekhraj Singh, 9 All., p. 290. 



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40 SOURCES OP HINDU LAW. [OHAP. II, 

must distinguish between diflferences of law arising from 
differences of opinion among the Sanskrit writers, and 
differences of law arising from the fact that their opinions 
have never been received at all, or only to a limited ex- 
tent. In the former case there are really different schools 
of law ; in the latter case there are simply no schools. 
I think it will be found that the differiences between the 
law of Bengal and Benares come under the former head, 
while the local variances, which exist in the Punjab, in 
Western, and in Southern, India, come under the latter 
head. 

TheDaya § 87. Any one who compares the Daya Bhaga with the 

^^ Mitakshara will observe that the two works differ in the 

most vital points, and that they do so from the conscious 
application of completely different principles. These will 
be discussed in their appropriate places through this work, 
but may be shortly summarised here. 

First : the Daya BHaga lays down the principle of 
religious efficacy as the ruling canon in determining the 
order of succession ; consequently it rejects the preference 
of agnates to cognates, which distinguishes the other 
systems, and arranges and limits the cognates upon prin- 
ciples peculiar to itself (A). 

Secondly : it wholly denies the doctrine that property 
is by birth, which is the corner-stone of the joint family 
system. Hence it treats the father as the absolute owner 
of the property, and authorises him to dispose of it at 
his pleasure. It also refuses to recognize any right in 
the son to a partition during his father's life (i). 

Thirdly : it considers the brothers, or other collateral 
members of the joint family, as holding their shares in 
quasi'SeyeraAty, and consequently recognizes their right to 
dispose of them at their pleasure, while still undivided (i). 

Fourthly : whether, as a result of the last principle, or 
upon independent grounds, it recognizes the right of a 

{h) See post Chap. xvi. (>) See post § 24b, 259. (k) See pott § 265. 



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PARAS. 37 & 38.] DIFFERENT SCHOOLS OF LAW. 41 

widow in an undivided family to succeed to her husband's 
share if he dies without issue, and to enforce a partition 
on her own account {I). 

It is usual to speak of the doctrine factum valet as one Factum vaUt, 
of universal application in the Bengal school. But thisis 
a mistake. When it suits Jimuta Vahana, he uses it as a 
means of getting over a distinct prohibition against aliena- 
tion by a father without the permission of his sons (m). I 
am not aware of his applying the doctrine in any other 
case. No Bengal lawyer would admit of any such sub- 
terfuge as sanctioning, for instance, the right of an un- 
divided brother to dispose of more than his own share in 
the family property for his private benefit, or as authoris- 
ing a widow to adopt without her husband's consent, or a 
boy to be adopted after upanayana, or marriage. The 
principle is only applied where a legal precept has been 
already reduced by independent reasoning to a moral sug- 
gestion. Dr. Wilson points out ttfat even Jimuta Vahana 
never applies this principle, except to cases where, in his 
view of the law, a person is doing that which he is strictly 
entitled to do, though the exercise of the right violates 
a moral obligation to others (n). 

§ 38. Now in all the above points, the remaining parts Females in 
of India agree with each other in disagreeing with Jimuta ^ ^ ** 
Vahana and his followers. Their variances inter se are 
comparatively few and slight. For the most important is 
the difference, which exists between Western India and the 
other provinces which follow the Mitakshara, as to the 
right of females to inherit. A sister, for instance, who is 
excluded in Benares and Bengal, ranks very high in the 
order of succession in the Bombay Presidency, and many 
other heiresses are admitted, who would have no locics 



{D See poai § 266. 479. 

(m) Daya Bhaga, ii., $ 30; Jolly, Lect. 113. 

(n) Dt Wilson'* Works V.^ 71-*-74, Bcio Balwant Singh v. JSTm Aori, 26 I. A., 
p. 69 ; 8. C, 90 All., p. 285. See a dtscassion upon the meaning and limitation of 
this doctrine, |K>«f § 165, 166. 



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42 SOURCES OP HINDU LAW. [cHAP. 11^ 

standi elsewhere (o). Any reader of Indian history will 
have observed the public and prominent position assumed 
by Maharatta Princesses, and it seems probable that the 
doctrine, which prevails in other districts, that women 
are incapable of inheriting, without a special text, has 
never been received at all in Western India. Women 
inherit there, not by reason, but in defiance, of the rules 
which regulate their admission elsewhere. In their case^ 
written law has never superseded immemorial custom (p). 

Law of adoption. § 39. Another matter as to which there is much vari- 
ance is the law of adoption. For instance, as regards the 
right of a widow to adopt a son to her deceased husband. 
In Mithila no widow can adopt. In Bengal and Benares^ 
she can with her husband's permission. In Southern 
India, and in the Punjab, she can adopt, even without his 
permission, by the consent of his sapindas. In Western 
India, she can adopt without any consent {q). So as 
regards the person to be adopted. The adoption of a 
daughter's or a sister's son is forbidden to the higher 
classes by the Sanskrit writers. It is legal in the Punjab. 
It is commonly practised in the South of India (r). In 
all these cases we may probably trace a survival of ancient 
practices which existed before adoption had any religious 
significance, unfettered by the rules which were introduced 
when it became a religious rite. The similarity of usage 
on these points between the Punjab and the South of 
India seems to me strongly to confirm this view. It is 
quite certain that neither borrowed from the other. It is 
also certain that in the Punjab adoption is a purely secular 
arrangement. There seems strong reason to suppose that 
in Southern India it is nothing more (s). But what is of 
importance with regard to the present discussion is that 
these differences find no support in the writings of the 

(o) Vyavahara Mayukha, iv., 8, § 19; W. & B., 127-132. 

(p) See po8t § 617, 629, 631. 

iq) See post § 112. 

(r) See post § 136, ]86. 

(«) See post § 106. 



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PARAS. 39 & 40.] JUDICIAL DECISIONS. 43 

early sages, or even of the early commentators. They 
appear, for the first time, in treatises which are absolutely 
modem, or merely in recorded customs. To speak of such 
variances as arising from differeht schools of law would be 
to invert the relation of cause and effect. We might just 
as well invent different schools of law for Kent and Middle- 
sex, to account for Gavelkind and the customs of London. 
Even Hindu lawyers cannot alter facts. In some in- 
stances, they try to wrest some holy precept into conform- 
ity with the facts (t) ; but in other cases, and especially 
in Western India, the facts are too stubborn. The more 
closely we study the works of the different so-called 
schools of law, other than those of Bengal, the more shall 
we be convinced that the principles of all are precisely 
the same. The local usages of the different districts vary. 
Some of these usages the writers struggle to bring within 
their rules ; others they silently abandon as hopeless. 
What they cannot account for, they simply ignore (u). 

§ 40. IV. Judicial Decisions. — A great deal has been influence of 
said, often by no means in a flattering spirit, of the deci- e»k^**» •^"^k®^- 
sions upon Native Law of our Courts, whether presided 
over by civilian, or by professional, judges. It seems to 
be supposed that they imported European notions into the 
questions discussed before them, and that the divergences 
between the law, which they administered, and that which 
is to be found in the Sanskrit law-books, are to be ascribed 
to their influence. In one or two remarkable instances, no 
doubt, this was the case ; but those instances are rare. My 
belief is that their influence was exerted in the opposite 
direction, and that it rather showed itself in the pedantic 
maintenance of doctrines whose letter was still existing, 
but whose spirit was dying away. It could hardly have 
been otherwise. It seems to be forgotten that upon all 

it) 8e«, for instance, the mode in which four conflicting views as to the 
right of » widow to adopt have been deduced from a single text of Vasishtha, 
Collector of Madura v. Mootoo Ramalinga, 12 M. I. A., 436; 8. 0., 10 Suth. 
(P. C). 17 ; 8. C, 1 B. L. R. .P. C), 1. 

(a) For instance, second marriiHres of widows, or wives which are eqnally 
practised in the North, the West, and the Sooth of India, see post § 94. 



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44 SOURCES OF HINDU LAW. [cHAP. II, 

disputed points of law, the English judges were merely 
The pundits. the mouthpieces of the pundits who were attached to their 
Courts, and whom they were boxmd to consult (v). The 
slightest examination of the earliest reports, at a time 
when all points of law were treated as open questions, 
will show that the pundits were invariably consulted, 
wherever a doubt arose, and that their opinions were, for 
a long time, implicitly followed. If, then, the decisions 
were not in accordance with Hindu law, the fault rested 
with the pundits, and not with the judges. The tendency 
of the pundits would naturally be to magnify the authority 
of their own law-books ; and, accordingly, we find that 
they invariably quoted some text in support of their 
opinion, even when the text had no bearing whatever 
upon the point. The tendency of the judges was even 
more strongly in the same direction. The pundit, how- 
ever bigoted he might be, was, at all events, a Hindu, 
living amongst Hindus, and advising upon a law which 
actually governed the every-day lives of himself and his 
family and his friends. He would torture a sacred text 
into an authority for his opinion ; but his opinion would 
probably be right, though unsustained by, or even opposed 
to, his text. With the English Judge there was no such 
restraining influence. He was sworn to administer Hindu 
law to the Hindus, and he was determined to do so, how- 
ever strange or unreasonable it might appear. At first he 
accepted his law unhesitatingly from the lips of the pun- 
dits ; and, so long as he did so, probably no great harm 
was done. But knowledge increased, and the fountains 
were opened up, and he began to enquire into the matter 
for himself. The pundits were made to quote chapter and 
verse for their opinions, and it was found that their 
premises did not warrant their conclusions. Or their 
opinions upon one point were compared with their opinions 
upon an analogous point, and found not to harmonise, 

(v) The puadits, as official referees of the Courts, were only abolished by 
Aet XI of 1864. 



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PAJRA. 41.] JUDICIAL DECISIONS. 45 

and logic demanded that they should be brought into 

conformity with each other. Sometimes the variance 

between the futwahs and the texts was so great that it 

was ascribed to ignorance, or to corruption. The fact 

really was that the law had outgrown the authorities. 

Native judges would have recognized the fact. English 

judges were unable to do so, or else remarked (to use a 

phrase which I have often heard from the Bench), ** that 

they were bound to maintain the integrity of the law. *' 

This was a matter of less importance in Bengal, where 

Jimuta Yahana had already burst the fetters. But in 

Southern India, it came to be accepted that Mitakshara 

was the last word that could be^ listened to on Hindu law. 

The consequence was a state of arrested progress, in which 

no voices were heard unless they came from the tomb. It 

was as if a German Were to administer English law from 

the resources of a library furnished with Fleta, Glanville 

and Bracton, and terminating with Lord Coke (w). 

§ 41. In Western and Northern India, the differences Force of usage, 
between the written and the unwritten law were too pal- 
pable to be passed over. Accordingly, in many important 
cases in Borrodaile's Reports, we find that the Court did 
not merely ask the opinion of their pundits, but took the 
evidence of the heads of the castes concerned as to their 
actual usage. The collection of laws and customs of the 
Hindu castes, made by Mr. Steele under the orders of 
Government, was another step in the same direction. It 
is probable that the laxity, which has been remarked as 
the characteristic of Hindu law in the Bombay Presidency, 
would be found equally to exist in many other districts, if 
the Courts had taken the trouble to look for it. In quite 
recent times the Courts of the N.-W. Provinces and of the 
Punjab have acted on the same principle of taking nothing 

{w) The substance of this paro^ph was written by ine in an Indian jour- 
nal so long ago as 1863. I mention the fact, lest it should be supposed that I 
have borrowed, without acknowledgment, from a very interesting passage in 
Sir H. S. Maine's Village Communities, p. 44. 



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46 SOURCES OF HINDU LAW. [CHAP. II, PARA. 41.] 

for granted. The result has been the discovery that, while 
the actual usages existing in those districts are remarkably 
similar to those which are declared in the Mitakshara and 
the kindred works, there is a complete absence of those 
religious principles, which are so prominent in Brahraani- 
cal law. Consequently, the usages themselves have diverg- 
ed exactly at the points where they might have been 
expected to do so (x), Absente causd^ abest et lex. 



(a?) 3ee Punjab Customs, 5, 11, 78. Sheo Singh Rai v. Mt. Dakho, 6 
N.-W. P., 382; affd 5 I. A., 87 ; S. C, 1 All., 688 ; ChotayLall v. Chunno Lall, 
61. A., 16; S. C, 4Cal., 744. 



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47 



CHAPTER III. 

THE SOURCES OP HINDU LAW. 

Custom. 

§ 42. If I am right in supposing that the great body of Castom binding, 
existing law consists of ancient usages, more or less modi- 
fied by Aryan or Brahmanical influence, it would follow 
that the mere fact that a custom was not in accordance 
with written law, that is, with the Brahmanical code, 
would be no reason whatever why it should not be binding 
upon those by whom it was shown to be observed. This 
is admitted in the strongest terms by the Brahmanical 
writers themselves. Manu says that ** immemorial usage 
is transcendant law," and that " holy sages, well knowing 
that law is grounded on immemorial custom, embraced, as 
the root of all piety, good usages long established" (a). 
And he lays it down that " a king who knows the revealed 
law must enquire into the particular laws of classes, 
the laws or usages of districts, the customs of traders, 
and the rules of certain families, and establish their peculiar 
laws " (6) : to which Kulluka Bhatta adds, as his gloss, 
" If they (that is, the laws) be not repugnant to the 
law of God," by which no doubt he means the text 
of the Vedas as interpreted by the Brahmans. But that 
Manu contemplated no such restriction is evident by 
what follows a little after the above passage. ** What 
has been practised by good men and by virtuous Brah- 
mans, if it be not inconsistent with the legal customs 
of provinces or districts, of classes or families, let him 
establish" (c). So Yajnavalkya says {d) : ** Of a newly- 
subjugated territory, the monarch shall preserve the social 
and religious usages, also the judicial system, and the state 
of classes, as they already obtained." And the Mitakshara 

(a) Mann, i., § 108, 110. 
(6 } Mann, viii., § 41. See, too, Vrihaspati, cited Vjavahara Maynkha, i., 1, 
$ 13, and Vanshtha and other authorities, cited M. Miiller, A. S. Lit., 60. 
(c) Mann, viiL, § 46. {d) YajnaviOkya, i., § 342. 



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48 CUSTOMARY LAW. [cHAP. Ill, 

quotes texts to the effect that even practices expressly 
inculcated by the sacred ordinances may become obsolete, 
and should be abandoned if opposed to public opinion (e) , 

Bec^M2»^by § 43 r^Y^Q fullest effect is given to custom both by our 
Courts and by legislation. The Judicial Committee in 
the Kamnad case said : " Under the Hindu system of law, 
clear proof of usage will outweigh the written text of the 
law '' (/). And all the recent Acts which provide for the 
administration of the law dictate a similar reference to 
usage, unless it is contrary to justice, equity or good 
conscience, or has been actually declared to be void (g). 

Records of local § 44. It is much to be regretted that so little has been 
done in the way of collecting authentic records of local 
customs. The belief that Brehmanism was the law of 
India was so much fostered by the pundits and judges, 
that it came to be admitted conventionally, even by those 
who knew better. The revenue authorities, who were in 
daily intercourse with the people, were aware that many 
rules which were held sacred in the Court, had never 
been heard of in the cottage. But their local knowledge 
appears rarely to have been made accessible to, or valued 
by, the judicial department. I have already mentioned, 
as an exception, Mr. Steele's collection of customs in 
force in the Deccan. In the Punjab and in Oudh most 
valuable records of village and tribal customs, relating to 
the succession to, and disposition of, land have been col- 
lected under the authority of the settlement officers, and 
these have been brought into relation with the judicial 
system by an enactment that the entries contained in 
them should be presumed to be true (A). Many most 

(e) Mitakshara, i., 8, § 4. See V. N. Mandlik, Introduction, 48, 70. Ra^liii- 
iiandana, i.,88. 

if) Collector of Madura v. Mootoo Ramalinga, 12 M. I. A., 436; 8. C, 10 
Suth. (P. C), 17 ; S. C, 1 B. L. R. (P. C), 1. 

ig) See, as to Bombay, Bom. Reg. IV of 1827, s. 26; Act II of 1864, s. 15. 
As to Barmah, Act XVII of 1875, b. 5. Central Provinces, Act XX of 1876, 
8. n. MndraP, Act TH of 1873, p. 16. Ondh, Act XVIH of 1876, s. 8. Punjab, 
Act XII of 1878, s. 1. See Sundar v. Khuman Singh, 1. All., 618. 

(h) These records are known by the terms, Wajib-nl-arz (a written represent- 
ation or petition) and Riwazi-i-am (common pi'actice or custom). See Punjab 



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PARAS. 43 & 44.] DBAVmiAN USAGES, 49 

interesting peculiarities of Punjab law will be found in a 
book to which I shall frequently refer, which gives the sub- 
stance of these customs, and of the decisions of the Chief 
Court of Lahore upon them, and in three volumes issued 
under the authority of the Punjab Government on the 
same subject (i). The special interest of these customs 
arises from the fact, already noticed {k), that Brahman- 
ism seems never to have succeeded in the Pimjab. 
Accordingly, when we find a particular usage common to 
the Punjab and to Sanskrit law, we may infer that there 
is nothing necessarily Brahmanical in its origin (Z). 
Another work of the greatest interest, which I believe no 
previous writer has ever noticed, is the Thesawaleme, or Theaawaieme. 
description of the Customs of the Tamil inhabitants of 
Jafifna, on the Island of Ceylon. The collection was 
made in 1707, under the orders of the Dutch Government, 
and was then submitted to, and approved by, twelve 
Moodelliars, or leading natives and finally promulgated as 
an authoritative exposition of their usages (m). Now, 

CuBtoms, 19; Act XXXIU of 1871, •. 61 ; XVn of 1876, s. 17. Lekrai Kuar 
▼. Makpal Singh, 7 I. A., 68 ; S. C, 5 Cal., 744 ; Harbaj y. Ouviani, 2 Ail., 493 ; 
Jtri Smgk v. Ganga, ib., 876; Thakur Nitepal Singh v. Jai Singh, 28 I. A., 
147; 3. C. 19 All., I; Muha'nmad Imam v. Sardar Huaain, 26 1. A.. 161 ; S. C.,26 
Cal., 81. In the case of Uman Farthad v. Gandharp Singh, 14 1. A., 127 ; S. C, 
15 Cal., 20, the Judicial Committee called attention to a practice which had grown 
op in Oadh of allowing the proprietor to enter his own views npon the Wajib-al- 
arz, whereas it ought to be an official record of customs, arrived at by the iDouiries 
of an impartial ofHoer. See,too,^erct/riam, 12All.,836,15AlI.,p.l52. AWajib- 
ul-an, which has long stood on record, and been unquestioned by the parties who 
would be affected by it, is primd facie evidence of custom, though not signed by 
any landholder in Uie village. Buttttm AH v. Abhan, 18 All., 407. 

(i> Notes on CuBtomary Law as administered in the Courts of thje Punjab, 
by Charles Bonlnois, Esq., Judge of the Chief Court, and W. H. Battigan, 
Esq., liohore, 1876. I cite it shortly as Punjab Customs. Punjab Customary 
Law. Kdited by C. L. Tupper, C.S., Calcutta, 1881. 

(*) Ante % 8. 

(l) Mr. C. L. Tupper says of the Punjab, " The Brahmans are not in the 
Punjab the depositories of Customary law. To ascertain it, we must ^o to the 
Tribal Council, if there be one, or to the elders of the tribe." It is not, I 
think, the custom which has modified the law. It is the Brahmanical law occa- 
sionally, and the Muhammedan law more often, which has modified the cus- 
tom." Punjab Customary Law, II., 82, 86. Mr. Baden-Powell says '* whatever 
early Aryan clans may have settled in the Punjab, they were non-Brahmanioal." 
** In the Punjab clans there are no ancient Brahmanical monuments. The 
Uindu law of the books is unknown, and to this day local customs of various 
kinds, sometimes quite opposed to the later Hindu ideals, are in vogue." The 
Indian Village Community, 1896, 102. 

(m) The edition which I possess was published in 1663, with ehe decisions of 
the English Court, by Mr. H. F. Mutukistna, who gave it to me, 

4 



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50 



CUSTOMARY LAW. 



[chap. IU, 



Pondioherry* 



Nambndri 
Brahmiins. 



y/e know that from the earliest time there has been 
a constant stream of emigration of Tamulians into 
Ceylon, formerly for conquest, and latterly for purposes 
of commerce. We also know that the influence of 
Brahmans, or even of Aryans, among the Dravidian races 
of the South has been of the very slightest, at all events 
until the English officials introduced their Brahman 
advisers (n) . The customs recorded in the Thesawaleme 
may, therefore, be taken as very strong evidence of the 
usages of the Tamil inhabitants of the South of India two 
or three centuries ago, at a time when it is certain that 
those usages could not be traced to the Sanskrit writers. 
The suggestions derivable from the Thesawaleme may now 
be supplemented from information drawn from the records 
of the Pondicherry Courts. The early tribunals of this 
settlement, being gifted with a fortunate ignorance of 
Hindu law, had been in the habit of referring questions 
depending upon that law for the decidon of the leaders of 
the caste, or of other persons supposed to possess a special 
knowledge of the laws or usages bearing on the case. 
This practice was formally recognised by a regulation of 
1769, and in 1827 the Government established a Consul- 
tative Committee of Indian Jurisprudence to assist the 
administration and the tribunals in questions involving a 
knowledge of the Indian laws and usages. This com- 
mittee consisted of nine Natives, selected with reference 
to their integrity and their knowledge of the laws, usages 
and customs, with a special preference for those whose 
fortunes guaranteed their independence. A great deal of 
most interesting information derived from these sources 
has lately been made available by the labours of Leon 
Sorg, Juge President du Tribunal de 1 re Instance de Pondi- 
cherry (o) . Undoubted evidence of the condition of Hindu 
law at a very much earlier period may also be found in the 
usages of the Nambudri Brahmans on the West Coast in 

(n) See ante, § 6. 

(o) Introduction a TEtude da Droit Hindon, Trait6 Theorique et Pratique da 
Droit Hindou, 1Q97, Aria du Comity Conaoltatif de Jurisprudenoe Indienne, 1896* 



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:pABA. 45.] VAIVIOUS APPLICATIONS. SI 

the Madras Presidency. The tradition is that they were 
introduced into Malabar as an organised community by 
king Parasurama, and the evidence tends to show that 
they must have been settled there about 1200 or 1500 
years ago. As they took their place among a community, 
which was governed by a totally different system, it may 
safely be assumed that the form of Hindu law, which 
prevails among the Nambudries of the present day, is that 
which was universal among the Brahmans of Eastern 
India at the time of their emigration. Its archaic charac- 
ter exactly accords with such a conclusion (p) . Many very 
interesting customs still existing in Southern India will be 
found in the Madura Manual by Mr. Nelson ; the Malabar 
Manual by Mr. Logan ; the North Arcot Manual by 
Mr. Cox ; the South Canara Manual by Mr. Sturrock ; the 
Manual of the Administration of the Madras Presidency 
<1885) by Dr. Maclean, and in the Madras Census Eeport 
of 1871 by Dr. Cornish. The various reports contain^ in 
the census of 1891 also supply much valuable information 
of which I have made use in this edition. These show 
what rich materials are available, if they were only 
sought for* 

§ 45. Questions of usage arise in four different ways in Various appiica- 
India : First, as regards races to whom the so-called arTuJ.*'"^**'"'' 
Hindu law has never been applied ; for instance, the 
aboriginal Hill tribes, and those who follow the Mamma- 
kaiayem law of Malabar, or the Alya S ant ana law of 
Canara. Secondly, as regards those who profess to follow 
the Hindu law generally ; but who do not admit its theolo- 
gical developments. Thirdly, as regards races who pro- 
fess submission to it as a whole ; B,ni, fourthly, as regards 
persons formerly bound by Hindu Law, but to whom it 
has become inapplicable. 

§ 46. The first of the above cases, of course, does not Cases where 
come within the scope of this work at all. The law which otpieiT^^""" 



(p) Vwudevan v. Secretary of State, 11 Mad., 160, 181. 



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53 CUSTOMARY LAW. [cHAP. III^ 

prevails upon the Malabar coast is, however, both so inter-i^ 
esting in itself, and is so mixed up with, and bears so» 
strongly upon Hindu Law proper, that I have discussed it 
at greater length in the present than in former editions^ 
The distinction between the second and third classes is* 
most important, as the deceptive similarity between the 
two is likely to lead to erroneous conclusions in cases where 
they really differ. For instance, in an old case in Cal- 
cutta, where a question of heirship to a Sikh was con- 
cerned, this question again turning upon the validity of a 
Sikh marriage, the Court laid it down generally that ** the 
Sikhs, being a sect of Hindus, must be governed by Hindu 
Law " (q). Numerous cases in the Punjab show that the 
law of the Sikhs differs materially from the Hindu law,, 
in the very points, such as adoption and the like, in 
which the difference of religion might be expected to 
cause a difference of usage. Similar differences are found 
among the Jats (r), and even among the orthodox Hindus 
of the extreme north-west of India (s). So as regards 
the Jains, it is now well recognised that, though of Hindu 
origin, and generally adhering to ordinary Hindu law^ 
that is the law of the three superior castes, {t), they 
recognize no divine authority in the Vedas, and do not 
practise the ShradhSy or ceremony for the dead, which is 
the religious element in the Sanskrit law. Consequently^ 
that the principles which arise out of this element do not 
bind them, and therefore, that their usages in many res- 
pects are completely different (u). I strongly suspect that 

{q) Juggomohun v. Saumeoomar, 2 M. Dig., 48^ followed Bkagwankuar t^ 
Joaendra Chandra, 80 I. A., 249; S. C, 81 Cal., 11. 

(r) The JaU (Sanskrit, Yadava) are the descendants of an aboriginal race 
Manning's Ancient India, i., 66. 

(t) See Panjab enstoms, paantn. As to the effect of the introduction of the 
Punjab Code as creating a lex loci, see Mulkah Do r. Mirza Jehan, 10 M. I. A.^ 
262; 8. C, 2 Snth. (P. C), 56. 

(t) Sheo Singh Bat r. Mi. Dakho, 6 N.-W. P., 382; affd. 6 I. A., 87 ; S. C, 1 
All., 68d ; Ambabai v. Oovind, 28 Bom., 257. 

(u) Bhagvandaa y. Bajmal, 10 Bom. H. C, 241 ; see cases where such differ- 
ence of assise was held not to be mode out, Lalla Mohabeer y. Mt. Kundun, 8 
Suth., 116 : affd. Sub nomine Doorga Prashad v. Mt Kundwi, 11. A., 55 ; S. C.» 
21 Suth., 214 ; S. C, 13 B. L. R., 286, Bachebi v. Makhan, 3 All., 66, Mart De- 
vamma v. Jinamma, 10 Mysore, 884. The religion of the Jains is a componnd 
of Buddhism and Brahmanism. Elphinstone History of India, 108, Daboi» 



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PABA. 47.] VARIOUS APPLICATIONS. 53 

most of the Dravidian tribes of Southern India come under 
the same head. 

§47. Southern India is, except perhaps in some few hill ^^^^ 
or jungle districts, entirely occupied by Dravidian tribes, 
who differ in race, origin, colour and language from the 
Aryans. Nothing can be stated with certainty as to the 
time when the Aryan first penetrated into the South. It 
was, probably, much before the Christian era. " As far 
as is actually known from direct evidence, the first Aryans, 
who settled permanently in the South, were hermits 
who, by civilising the people round about them, gradually 
opened a pathway for more effectual invasions ** (t)). 
They never colonised, or even conquered it. ** Southern 
India has no other connection " with the Aryan race 
than that it has, for many ages, been under the influence 
of Aryan, in other words, of Brahman, administrators.*' 
At the present day the Brahmans are only 3 per cent, of 
the Southern Indian population. They are practically 
the only Aryans. There may be a few Vaisyas, or 
Kshatriyas ; but their number is inappreciable. None of 
the existing Sudras can be recognised as Aryans, and it is 
doubtful whether any Aryan Sudras ever came to Southern 
India. Those who are now called Sudras are simply that 
large class of the community who, not being of the twice- 
born classes, are still recognised by the Brahmans as 
being within the pale of caste, as distinguished from the 
mere outcastes (w) . Primd facie one would not expect 
that Brahman laws and usages would have been widely 
accepted by an alien race. The Jesuit Bouchet, who 
lived in Madura in the beginning of the 18th century, 
stated that the natives whom he knew had no writings 
embodying their laws, and were governed entirely by 

Appx. I, p. 693. Mr. Fergasson r«mark8 on the curioas identity between the 
Architecture of Soath Canara nnder Jain influence and ihat of Nepal, cited by 
Mr. Logan, Mohibar Manaal, I, 184. They revere the gods of the Hinda 
Pantheon, bat reject the Vedas. Their supreme deity is Narankar. Their 
Scriptures are the thirty- two sutras written by Mahavir. They neither r«^Yerenoe 
nor feed Brahmana. Census of 1891, Punjab Report, XIX, 181, 182. 

(v) Man. Adm., Mad., 1, 114. (w) lb., 33, 87, Sorg Int., 46, 



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CUSTOMARY LAW. [cHAP. Itl^ 

immemorial usage (x). The Abbi Dubois writing in re- 
ference to Mysore and the Southern parts of the Madras 
Presidency in the beginning of this century, says that 
there are two or three Hindu works which contain rulea 
and directions concerning the administration of justice 
both civil and criminal, and mentions as the best known of 
these the Dharma-Sastras, theNiti-Sastras, and theManu- 
Sastras ; but he remarks that these books are quite beyond 
the comprehension of the majority of Hindus, and that 
their disputes are settled by common-sense and by customs, 
handed down from father to son (y). M. Leon Sorg states, 
that the decisions of the Pondicherry Court in the last 
century show that the Tamil population was ignorant of 
the Sanskrit law books, and even of the Sanskrit terms^. 
such as Brahma, or Asura marriage, Stridhan, Sapinda or 
Bandhu. Only two cases are to be found which were 
referred to the pundits of Conjeveram, and in these the 
parties were Brahmans (z). At the present day all classes^ 
even the majority of the hill and forest races, who are 
Muhammedans, call themselves Hindus, and even offer a 
nominal allegiance to the Vedic deities ; but the real wor- 
ship of the greater number is offered to the village deities^ 
whose priests are never Brahmans, and who are propitiated 
by blood-sacrifices which are repugnant to Brahmanical 
feeling. Demons, serpents and even plants are also the 
object of an adoration, which is as much intended to pro- 
pitiate against evil as to procure good (a). As regards a 
principle which is at the root of much of the Brahman 
law, it is stated "Homage to remote ancestors is not & 
practice among the Dravidians, though observances are 
paid to relatives lately deceased with the intent that they 
may not return to do harm to the living. Hero-worship is 
unknown to the Dravidians. They do not act with any 
hope of reward, or any fear of punishment, which will 



(«) Cited Sorg Int., 8. 
(y) Dubois, 661—63. (<) Sorg Int., 9. 

(a) Census of 1891, XIII, 66—60; N. Arcot Man., 1, 186—189; Man. Adm., 
Mad., I, 70—84. 



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PABA. 48.] VARIOUS APPLICATIONS. 95 

arise after death" (6). "Again, it is part of the Brah- 
manical doctrine that a man must have a son to save 
him from hell ; but this belief obtains little currency among 
the generality of the people, and the strong tendency%to 
marriage has little, if any, connection with religious 
sentiments'* (c). 

§ 48. As regards those who profess submission to the iWiputed »p- 
Hindu law as a whole, questions of usage arise, ^r^^, with E)ca!iiawr*' 
a view to determine the particular principles of that law by 
which they should be governed ; and, secondly, to deter- 
mine the validity of any local, tribal, or amily exceptions 
to that law. Primd facie, any Hindu residing in a parti- 
cular province of India is held to be subject to the parti- 
cular doctrines of Hindu law recognized in that province. 
He would be governed* by the Daya Bhaga in Bengal ; by 
the Vivada Chintamani in North Behar and Tirhut ; by 
the Mayukha in Guzerat, and generally by the Mitakshara 
elsewhere (d). But this law is not merely a local law. It 
becomes the personal law, and a part of the status of 
every family which is governed by it. Consequently, where 
any such family migrates to another province, governed by 
another law, it carries its own law with it (e). For 
instance, a family migrating from a part of India, where 
the Mitakshara or the Mithila system prevailed, to Bengal, 
would not come under the Bengal law from the mere fact 
of its having taken Bengal as its domicil. And this rule 
would apply as much to matters of succession to land as 
to the purely personal relations of the members of the 
family. In this respect the rule seems an exception to the 
usual principles, that the lex loci governs matters relating 
to land, and that the law of the domicil governs personal 

(6) Man. Adm., Mad., I, 71. (e) Census, 1S91, XIII, 128. 

(d) Heeante, $ 26-31. Ram Dan v. Chandra Dasia, 20 Cal., 409. Aa to 
Assam and Orissa. which are sapiiofied lo be governed by Bengul law, and 
Uanjam by the law of Madran, see ante, § 11 . 

(e) Amhahai v. Chvind^^S Bom., 257 : ifniJathi Anviv. Subbaraya^ 24 Mad., 
660; Parbati Knmari r. Jagadis Chunder, 29 I. A.. 82, S. C, 29 (*al , 4''.8. This 
law will not neceHSiurily be the law now prevailing in the domicil of origin, but 
that which did prevail there at the time of emigration. Vaiudevan v. Secretary 
of State, 11 Mad., 167, 162. 



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56 



CUSTOMARY LAW. 



[chap. Ill, 



Cbftuse of per* 
flonallaw. 



Act of Govern- 
ment. 



Evidence of va 
lid oostom. 



relations. The reason is that in India there is no lex loci, 
every person being governed by the law of his personal 
status. The same rule as above would apply to any family 
which, by legal usage, had acquired any special custom of 
succession, or the like, peculiar to itself, though differing 
from that either of its original, or acquired, domicil (/). 

§ 49. When such an original variance of law is once 
established, the presumption arises that it continues ; and 
the onus of making out their contention lies upon those 
who assert that it has ceased by conformity to the law 
of the new domicil (g). But this presumption may be 
rebutted, by showing that the family has conformed in its 
religious or social usages to the locality in which it has 
settled ; or that, while retaining its religious rites, it has 
acquiesced in a course of devolution of property, according 
to the common course of descent of property in that 
district, among persons of the same class (h). 

Of course the mere fact that, by the act of Government, 
a district, which is governed by one system of law is an- 
nexed to one which is governed by a different system, 
cannot raise any presumption that the inhabitants of 
either district have adopted the usages of the other (i). 

§ 50. The next question is as to the validity of customs 
differing from the general Hindu law, when practised by 
persons who admit that they are subject to that law. 
According to the view of customary law taken by Mr. 
Austin (A), a custom can never be considered binding 
until it has become a law by some act, legislative or 
judicial, of the sovereign power. Language pointing to 
the same view is to be found in one judgment of the 



, 1*52 ; Byjnath v. Kovilmon^ 24 Suth., 
, Mt. Heetamotee^ 12 M. I. A.,91,tn/ra, 



{f) Butcheputty v. Bajuuder, 2 M. 1. A. 
96, and per curiam^ Sooreiidronath v. M 
note (g) ; Manik Chand v. Jngat Settani. 17 <^'al., 618. 

(g) Soorendronathv, ML Heeramonee, 12 M. I. A.. 81 ; S. C, 1 B. L. R. (P. C), 
26 : 8. C, 10 Suth. <P. C), 86 ; OhnvnesHurree v. Kiahen, 4 Wym., 226; Sonatun 
Y. Buttun, Suth. Sp., 96; Pirthee Singh v. ML S?ieo, H Suth., 61. 

(h) Bajch under v. GoctUt-hund, 1 S. D., 43 (56) ; Chundro v. Nobin SoondvTp 
2 Suth., 197 ; Bambromo v. Kaminee, 6 Suth., 296 ; S. C 8 Wym., 3 ; Junarud- 
deen v Nobin Chunder^ Marsh., 232; per curiam^ Soorendronath v. Mt.Heera" 
monee, 12 M. I. A., 96, supra, note {g). 

(») Prithee Singh v. Court of Wards, 28 Suth., 272. 

{k) Austin, i., 148, ii., 229. 



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PARAS. 49 & 50.] PERSONAL LAW. 57 

Madras High Court (/). But such a view cannot now be 
sustained. It is open to the obvious objection that, in 
the absence of legislation, no custom could ever be 
judicially recognized for the first time. A decision in its 
favour would assume that it was already binding. The 
sounder view appears to be that law and usage act, and 
re-act, upon each other. A belief in the propriety, or the 
imperative nature of a particular course of conduct, pro- 
duces a uniformity of behaviour in following it ; and a 
uniformity of behaviour in following a particular course of 
<3onduct produces a belief that it is imperative, or proper, 
to do so. When from either cause, or from both causes, 
a uniform and persistent usage has moulded the life, and 
regulated the dealings, of a particular class of the com- 
munity, it becomes a custom, which is a part of their per- 
sonal law. Such a custom deserves to be recognized and 
enforced by the Courts, unless it is injurious to the public 
interests, or is in conflict with any express law of the 
ruling power {m). Hence, where a special usage of suc- 
cession was set up, the High Court of Madras said: 
*' What the law requires before an alleged custom can 
receive the recognition of the Court, and so acquire legal 
force, is satisfactory proof of usage, so long and invari- 
ably acted upon in practice, as to show that it has, by 
common consent, been submitted to as the established 
governing rule of the particular family, class, or district of 
country ; and the course of practipe upon which the cus- 
tom rests must not be left in doubt, but be proved with 
certainty " (n). This decision was affirmed on appeal, and 

(I) Narasanimal v. Balaramacharlu^ 1 Mad. H. C, 424. 

(m> See the sabj^ct discassed, Khojak*a cate^ Perry, O. C, 110; Howard y. 
Pe$tonji, ib. , 535 ; Tara Chand v. Reeb Bam, 8 Mad. H. C, 66 ; Bhau Nanaji v. 
Hundrabai, II Bom. H. C, 249 ; Mathura y. Esu, 4 Bom., 546 ; Savigny, Droit 
Bom., i., 33—86, 166— 175 ; Introdaotion to Punjab CuBtoms. Ab to the effect 
of jndicial declBtons in evidencing a custom, see Shsmbku Nath v. Oapan 
Chand, 16 All., 879. 

(n) Sivanananja v. Muttu Bamalinga, 8 Mad. H. C, 75, 77 ; affirmed on ap* 
peal. Sub nomine, Bamalakahmi v. Sivanantha, the Ooread case, 14 M. I. A., 
670; S. C. 12 B. L. B., 896; 8. C, 17 Kuth., 658. Approved by the Bombay 
HJRh Court, Shidhojirav v. Naikojirav, 10 Bom. H. C, 284. See also Bhvjang- 
rav V. MdUnirav, 6 Bom. H. C. (A. C. J.}, 161 ; ChinnammaX v. Varadarajulu^ 
16 Mad., 807. 



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58 CtrSTOMARY LAW. [cHAP. Ill, 

the Judicial Committee observed (o) ; " Their Lordships 
are fully sensible of the importance and justice of giving 
effect to long established usages existing in particular 
districts and families in India, but it is of the essence of 
special usages, modifying the ordinary law of succession, 
that they should be ancient and invariable ; and it is fur- 
ther essential that they should be established to be so by 
clear and unambiguous evidence. It is only by means of 
such evidence that the Courts can be assured of their exist- 
ence, and that they possess the conditions of antiquity and 
certainty on which alone their legal title to recognition 
depends." Accordingly, the Madras High Court, when 
directing an inquiry as to an alleged custom in the south of 
India that Brahmans should adopt their sister's sons, laid 
it down that : ** I. The evidence should be such as to 
prove the uniformity and continuity of the usage, and the 
conviction of those following it that they were acting in 
accordance with law, and this conviction must be inferred 
from the evidence; II. Evidence of acts of the kind; 
acquiescence in those acts ; decisions of Courts, or even of 
panchayets, upholding such acts ; the statements of ex- 
perienced and competent persons of their belief that such 
acts were legal and valid, will all be admissible ; but it is 
obvious that, although admissible, evidence of this latter 
kind will be of little weight if unsupported by actual 
examples of the usage asserted " (p). Finally, the custom 
set up must be definite, so that its application in any 
given instance may be clear and certain, and reasonable (9). 
Oiiiisof proofof § 51. Where a tribe or family are admittedly governed 
by Hindu law, but assert the existence of a special custom 
in derogation of that law, the onus of course rests upon 

(o) 14 M. I. A., 680. A long continaed practice which apiiears to have originat- 
ed from, and to be maintained by, a seneH of erroneous decifuons cannot be Rup- 
r^rted as a cQtttom, if the decisions themselves are ultimatelv reveist-d. The 
itUpar case, 26 I. A., Sa, po«e § 341. 

{p) Gopai4iyyan v. Jtaghwpatiayuan , 7 Mad. H. C, 250, 254. See too,j>fr 
Uarkby, J., Htranath v. Baboo liom.9.B. L. R.,294: S. C.,173uth..316;6W- 
lecior of Madura ▼. Mootoo Ramalivga, 12 M . I. A., 486 ; 8. C, 10 Sath. (P. C.)» 
17; 8. C, I B. L. R. (P. C), 1 And Hurpurah adv. Sheo Dyal.Sl. A.,286 ; S. C, 
26 Snth., 66 ; VUhnu v. Krishnan, 7 Mad., 3 ; Uamahh v. Mandil, 27 Gal., 879» 

{q) Luchman v. Akhar, 1 All., 440 ; Lola v. Hira, 2 All., 49. 



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PARAS. 51 Sc 52.] HOW ESTABLISHED. 69 

those who assert the custom to make it oat. For in- 
stance, a custom forbidding adoption, or barring inherit- 
ance by adoption, might be established, though, in a 
family otherwise subject to Hindu law, it would probably 
require very strong evidence to support it (r). But if the 
tribe or family had been originally non-Hindu, and only 
adopted Hindu usages in part, the onus would be shifted, 
and the burthen of proof would rest upon the side which 
alleged that any particular doctrine had become part of 
the personal law. A case of this sort arose in regard to 
the Baikantpur family, who were not originally Hindus, 
but who had in part, though not entirely, adopted BUndu 
customs. On a question of succession, when the estate 
was claimed by an adopted son, it was held by the 
Judicial Committee that the onus rested upon those who 
relied on the adoption to show that this was one of the 
Hindu customs which had been taken into the family law. 
If the family was generally governed by Hindu law the 
claimant might rely on that, and then the onus of proving 
a family custom would be on him who asserted it (s). 

§ 52. It follows from the very nature of the case that a Costom cumot 

be cf A&tAd bv 

mere agreement among certam persons to adopt a parti- agreement, 
cular rule cannot create a new custom binding on others, 
whatever its eflfect may be upon themselves (t). Nor can 
a family custom ever be binding where the family, or 
estate, to which it attaches is so modern as to preclude 
the very idea of immemorial usage (w). Nor does a 
custom, such as that of primogeniture, which has governed 
the devolution of an estate in the hands of a particular 
family, follow it into the hands of another family, by 
whom it may have been purchased. In other words, it 
does not run with the land (r). 

(r) Bithnalh Smgh v. Ham Chum Majmodar, 8. D. of lb50, 20 ; Patel 
Vandravan Jekiton v. Manila^ 16 Bom., 470. 

(f) Fanindra Deb y. Bajewar, 12 I. A., 7*2; S. C, U Cal., 468. 

(/) Per eur., Myna Boyee v. Ootaram, 8 M. 1. A., 420; S. C, 2 Suth. (P. C), 
A; Abraham ▼. Abraham, 9 M. I. A., 242; 8. C, 1 Suth. (P. C), 1 ; Sarupiy. 
iiukh Bam, 2 N.-W. P., 227 ; Bhaoni v. Maharaj Singh, 3 All., 788. 

(») Umriihnath v. Goureenath, 18 M. I. A., 542, 649 ; 6. C, 15 Suth. (P. C), 10. 

{v) Oapal Doss y. Nurotum, 7 S. D., 195 (280). 



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60 



CUSTOMARY LAW. 



[chap. Ill, 



Continuity 
essential. 



May be dis- 
con tinned. 



UsajTO 
fanmy, 



§ 53. Continuity is as essential to the validity of a 
custom as antiquity. In the cases of a widely-spread 
local custom, want of continuity would be evidence that it 
had never had a legal existence ; but it is difficult to 
imagine that such a custom, once thoroughly established, 
should come to a sudden end. • It is different, however, in 
the case of family usage, which is founded on the consent 
of a smaller number of persons. Therefore, where it ap- 
peared that the members of a family, interested in an estate 
in the nature of a Kaj, had for twenty years dealt with it 
as joint family property, as if the ordinary laws of succes- 
sion governed the descent, the Privy Council held that any 
impartible character which it had originally possessed, was 
determined. They said : ** Their Lordships cannot find 
any principle, or authority, for holding that in point of 
law a manner of descent of an ordinary estate, depending 
solely on family usage, may not be discontinued, so as to 
let in the ordinary law of succession. Such family usages 
are in their nature different from a territorial custom which 
is the lex loci binding all persons within the local limits in 
which it prevails. It is of the essence of family usages 
that they should be certain, invariable, and continuous ; 
and well established discontinuance must be held to 
destroy them. This would be so when the discontinuance 
has arisen from accidental causes ; and the effect cannot 
be less when it has been intentionally brought about by 
the concurrent will of the family. It would lead to much 
confusion, and abundant litigation, if the law attempted 
to revive and give effect to usages of this kind after 
they had been clearly abandoned, and the abandonment 
had been, as in this case, long acted upon ** (w), 
of single § 54. The above cases settle a question, as to which 
there was at first some doubt entertained, viz,, whether a 
particular family could have a usage differing from the 
law of the surrounding district applicable to similar per- 

(w) Bajkishen v. Bamjoy, 1 Cal.. 186 ; 8. C, 19 Suth., 8. S«9e,al8o,,ptfrciir., 
Abraham v. Abraham, 9 M. I. A., 248 ; S. C.,1 Snth. (P. C). 1. 



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PARAS. 53 & 54.] FAMILY USAGE. 61 

sons (x). There is nothing to prevent proof of such a 
family usage. But in the case of a single family, and 
especially a family of no great importance, there will of 
course be very great difficulty in proving that the usage 
possesses the antiquity and continuousness, and arises 
from the sense of legal necessity as distinguished from 
conventional arrangement, that is required to make out 
a binding usagfe (y). Where the family is a very great 
one, whose records are capable of being verified for a 
number of genemtions, the difficulty disappears. In the 
case of the Tipperah Kaj, usage has been repeatedly 
established by which the Raja nominates from amongst 
the members of his family the Jobraj (young sovereign) 
and the Bara Thakoor (chief lord), of whom the former 
succeeds to the Kaj on a demise of the Eaja, and the second 
takes the place of Jobraj (z). Also a custom in the Raj 
of Tirhoot, by which the Raja in possession abdicates 
during his lifetime, and assigns the Raj to his eldest son, 
or nearest male heir (a). Many of the cases of estates 
descending by primogeniture appear to rest on the nature 
of the estate itself, as being a sort of sovereignty, which 
from its constitution is impartible {b) . But family custom 
alone will be sufficient, even if the estate is not of the 
nature of the Raj, provided it is made out (c). And where 
an impartible Raj has been confiscated by Government, 
and then granted out again, either to a stranger, or to a 
member of the same family, the presumption is that it 

(x) See Basvantrav v. Mantappa, 1 Bom. H. C, Appx. 42 (2nd eJ.) ; percwr,^ 
Tara Chand v. Beeh Bam, 3 JJod. H. C, 68 ; Madhavrav v. Balkriahnaf 4 
Bom. H <;. (A. C. J.). 113. 

(y) See the subject discusBed, Bhau Nanaji v. Sundrabaif 11 Bom. H. C, 
269 ; lamail v. Fidayat, 8 All., 728. 

(£) Neelkisto Deb v. Beerchunder, 12 M. I. A.,628 ; S. C, 12 Sutli. (P.C), 21; 
8. C, 8 B. L. R. (P. C), 18. 

(a) Ouneth v. Moheshur, 6 M. I. A., 164, which see in the Court below, 
7 S. D., 238 (271) ; see the Pachete Baj, Ourundnarain v. Vnund, 6 S. D., 282 
(364)f offd. mb nomine^ Anund v. Dherau 5 M. I. A., 82. 

(6) l%ere may, however, be a partible Kaj See Ohirdharee v. Koolahul, 2 
M. I. A., 344 ; S. ()., 6 Sath. (P. C). 1. 

(e) Bawut Vrjun v. Bavmt Ghunsiantf 6 M. I. A., 169; Ohowdhry Chinta- 
mun ▼. Nowlukho, 2 1. A., 268 ; S. C, 24 Sath., 255 ; Yarlagadda MtUUharjuna 
T. r. Durga, 17 I. A., 184 ; S. C, 18 Mad., 406 ; Thakur NUopal Singh v. Jai 
Singh, 23 I. A., 147 ; S. C, 19 All., 1 ; Oarurudhwaja v. Savarandhwaja, 
$nY, A., 288 ; S. C, 23 AH. 87; LaJc8hmipati v, Kandasami, 16 Mad., 54, 



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62 CUSTOMARY r#AW. [cHAP. Ill, 

has been granted with its incidents as a Baj, of which the 
most prominent are impartibility and descent by primo- 
geniture (d) . This presumption, however, will not prevail, 
when the mode of dealing with the Baj after its confisca- 
tion, and the mode of its re-grant are consistent with an 
intention that it should for the future possess the ordinary 
incidents of partibility (e), 

§ 55. Customs which are immoral, or contrary to public 
immorfti nsages. policy, wiU neither be enforced, nor sanctioned (f) . For in- 
stance, prostitution is not only recognized by Hindu usage 
and honoured in the class of dancing girls, but the relations 
between the prostitute and her paramour were regulated 
by law, just as any other species of contract (g). Even 
according to Hindu views, however, it is immoral, and 
entails degradation from caste (A). It is quite clear, 
therefore, that no English Court would look upon prosti- 
tution as a consideration that would support a contract ; 
and it has been held that the English rule will also be 
enforced to the extent of defeating an action against a 
prostitute for lodgings, or the like, supplied to her for the 
express purpose of enabling her to carry on her trade (i). 
On the other hand, until the passing of the Penal Code in 
1861, no aspect of prostitution was illegal ; and the Courts 
recognised, and gave effect to the usages of that class as 
relating to rights of property, power of adoption, and 
special rules of inheritance inter se (k) ; the first element 

(d) Beer Periah v. Maharajah Eajendar (Hunsapore case), 12 M. I. A., 1; 
S. C, 9 Suth. (P. C), 15 ; Mutta Vaduganathay. Doraainga, 8 I. A., 99 ; 8. C, 
3 Mad., 290 ; Bam Nundun Singh v. Janki Koer, 29 I. A., 178 ; S. C, 29 Cal., 
828; Muhammad Afzul Khan v.OhulamKasim.QOl. A. 1 190 \ S.C.,80Cal.,843. 

(e) Venkata Naraaimha v. Narayya (Ntizvid case), 7 1. A., 88 ; 8. C, 2 Mad., 
128 ; Mirangi Zamindar v. Satrucharla Baynahhadrat 18 I. A., 46 ; S. C, 14 
Mad., 287 ; the Bamnad case, 24 Mad., p. 626. 

(/) Manu, viii., § 41 ; M. Muller, A. 8. L., 5C. See statutes cited, ante^ § 43, 
note (a). 

{a) Dubois, 592 ; see Viv. Chint., 101. 

[h) 2 W. MacN., 132; Sivaaungu v. Minalj 12 Mad., 277; Tara Naikin ▼. 
Nana Lakshman, 14 Bom., 90; Kamalam v. Sadagopa Sami, 1 Mad., 356; 
Muttukannu v. Paramaaami, 12 Mad.. 214. 

(») Goureenath Modhoomonee, 18 Suth., 445; 8. C, 9 B. L. R., appx. 87; 
see Sutao v. Hureeram^ Bellasis 1. 

(k) Tara Munnee v. Mottee, 7 8. D., 273 (825) ; Shida v. Sunahidana, Morris, 
Pt« I., 137 ; Venkataehalam v. Venkataaami^ Mad., Dec. 1866, p. 66 ; Cfhalakonda 
V. Batnachalamy 2 Mad. H. C, 58; Kamakahi v. Nagarathnam^ 6 Mad. H. C, 
161 ; Nanee Tara Naikin v. AUarakia^ 4 Bom., 673 



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PARA. 55.] FAMILY USAGE. 68 

of illegality was introduced by sees. 372 and 373 of the 
Penal Code, which made it a punishable offence to dispose 
of, or obtain possession of, a minor under sixteen for 
the purposes of prostitution. In 1876 the Madras High 
Court refused to recognise a right alleged by the dancing 
girls of a pagoda to exclude all new dancing girls, except 
such as were approved by themselves. The decision went 
upon general principles of morality, and upon the ground 
that the right alleged would countenance such a traffic in 
minors as was prohibited by the Penal Code (I). In the 
same year, however, the same Court held that a dancing 
girl, who had been dismissed from her office, because she 
had refused to recognise dancing girls introduced in 
violation of the right alleged in the previous case, had a 
good cause of action. The two cases were distinguished 
on the ground that, in the later case, it was alleged that 
the plaintiff's office was an hereditary one, with endow- 
ments and emoluments attached (m) . In 1879 Mr. Justice 
West in a very elaborate judgment, decided that the 
adoption of a daughter by a dancing girl, though un- 
doubtedly practised and recognised, was invalid on general 
grounds of morality and public policy. The ruling was 
absolutely unnecessary, as the suit was brought by the 
adopted daughter and it was found that there were natural 
daughters who would bar her claim (n). The groimds of 
the decision were disapproved by the Madras Courts in a 
case where the validity of such ' an adoption was raised 
and affirmed, and were certainly not adopted in their 
entirety in a later Bombay case, where the validity of an 
endowment, in favour of the dancing girls of a pagoda, 
was disputed (o). The Madras Court has now, by a series 
of decisions, adopted the rule laid down by Justice 
Muttusami Aiyar in 11 Mad., 492, which limits the 
illegality of adoptions to cases where they involve the 

(l) Chmna Ummaiyi v. Tegarat, 1 Mf.^., 168. 
(m) Kamalam v. 8<idagopa, 1 Mad., 856. 
(n) Matkura Naikin v. Eiu^ 4 Bom., 646. 
(o) Venku V. Mahalinga^ 11 Mad., 898; TarorNaikm v. Nana, 14 Bom., 90. 



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64 CUSTOMAEY LAW. [cHAP. Ill, 

commission of an offence under the Penal Code. ** We 
may set aside, or decline to enforce, a contract or dis- 
position which has for its immediate object the pros- 
titution during her minority, so as to leave her no choice 
of married life when she is over sixteen years." Where 
no such result is contemplated, the usages of the caste, 
if established, will be enforced (p). A very similar 
question came before the Privy Council where the rights 
of females adopted into what were called family brothels 
were discussed. The case arose between Muhammedans, 
and the Committee held that the customs proved were 
contrary to the policy of that community since, by the 
law of the Koran, intercourse with prostitutes is unlawful, 
prohibited, and punishable. The difference of the view 
taken by Hindus was glanced at, but did not call for 
consideration (q). 

■anUge eaa- So it has been held in Bombay that caste customs 
authorising a woman to abandon her husband, and marry 
again without his consent, were void for immorality (r). 
And it was doubted whether a custom authorising her to 
marry again during the lifetime of her husband, and with 
his consent, would have been valid (s). In Madras, it has 
been held that there is nothing immoral in a custom by 
which divorce and re-marriage are permissible by mutual 
agreement, on repayment by one party to the other, of 
the expenses of the original marriage (t). Among the 
Nairs, as is well known, the marriage relation involves no 
obligation to chastity on the part of the woman, and gives 
no rights to the man. But here what the law recognizes is 
not a custom to break the marriage bond, but the fact 

(p) EfB parte PadmavcUi, 6 Mad. H. C, 416 ; Rea, v. Bammanna^ 12 Mad., 273 ; 
Snnivasa v. Anvaiami, 15 Mad., 823; Kamalakahmi v. Ramasami, 19 Mad., 
127 ; Sanjivi v. Jalajakahi, 21 Mad., 229 ; R.v. Jaila, 6 Bom., 6 H. C. (C. C), 
60 ; Manj€umma v. Sheshgirirao, 26 Bom., 491. 

(q) Ghaaite v. Umrcu) Jan, 20 1. A., 193 ; S. C. 21 Cal., 149. 

(r) B, V. Karaan, 2 Bom. U. C, 124; see R. v. 3fano^r, 5 Bom. H. C. 
(C. C), 17 ; Vji V. Hathi, 7 Bom. H. C. vA. C. J.), 183 ; Narayan v. Laving, 
a Bom., 140. 

(a) Khemkar y. Vmiaahankar, 10 Bom. H. C, 881. 

\t) Sankaralingam Chetti v. Subban Chettyt 17 Mad., 479. 



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PARAS. 56 & 57.] CHANGE OF FAMILY USAGE. 66 

that there is no marriage bond at all (u). In a case before 
the Privy Council, a custom was set up as existing on the Public policy. 
West Coast of India, whereby the trustees of a religious 
institution were allowed to sell their trust. The Judicial 
Committee found that no such custom was made out, but 
intimated that in any case they would have held it to be 
invalid, as being opposed to public policy (v). An agree- 
ment to assist a Hindu for money to obtain a wife has 
also been held valid on the same ground (w), 

§ 56. The fourth class of cases mentioned before (§ 45) Change of 
arises when circumstances occur which make the law, *™ ^ °**^' 
which has previously governed a family, no longer appli- 
cable. In one sense any new law, which is adopted for 
the governance of such a family, must be wanting, as 
regards that family, in the element of antiquity necessary 
to constitute a custom. On the other hand, the law itself 
which is adopted may be of immemorial character : the 
only question would be as to the power of the family to 
adopt it. We have already seen that a family migrating 
from one part of India to another may either retain the 
law of its origin, or adopt that of its domicil (x). The 
same rule applies to a family which has changed its status. 
If the new statics carries with it an obligation to submit 
to a particular form of law, such form of law is binding 
upon it. If, however, it carries with it no such obligation, 
then the family is at liberty, either to retain so much of 
its old law as is consistent with its change of status, or to 
adopt the usages of any other class with which the new 
statics allows it to associate itself. 

§ 57. Where a Hindu has become converted to Muham- Conrersioii to 
medanism, he accepts a new mode of life, which is ?J^^°^®^**" 
governed by a law recognized, and enforced, in India. It 
has been stated that the property, which he was possessed 

(u) See Koroma v. EUg., 6 Mad., 874, post § § 100, 101. 
Iv) Bajah Vurmah v. Bavi Vurmah, 41. \., 76 ; S. C, 1 Mod., 286. 
{w) VcUthyanatham v. Oungarazu, 17 Mad., 9, Act IX of 1872, s. 28. 
(«) Ante § 48. 



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CUSTOMARY LAW. [CHAP. Ill, 

of at the time of hie conversion, will devolve upon those 
who were entitled to it at that time, by the Hindu Law, 
but that the property, which he may subsequently acquire, 
will devolve according to Muhammedan law (y). The 
former proposition, however, must, I should think, be 
limited to cases where by the Hindu law his heirs had 
acquired an interest which he could not defeat. If he was 
able to disinherit any of his relations by alienation, or by 
vnll, it is difl&cult to see why he should not disinherit them 
by adopting a law which gave him a different line of heirs. 
The latter part of the proposition, however, has been 
affirmed by the Privy Council, in a case where it was con- 
tended that a family, which had been converted several 
generations back to Muhammedanism, was still governed 
by Hindu law. Their Lordships said : ** This case is 
distinguishable from that of Abraham v. Abraham (z). 
There the parties were native Christians, not having, as 
such, any law of inheritance defined by statute ; and, in the 
absence of one, this Committee applied the law by which, 
as the evidence proved, the particular family intended to be 
governed. But the written law of India has prescribed 
broadly that in questions of succession and inheritance, 
the Hindu law is to be applied to Hindus, and the 
Muhammedan law to Muhammedans ; and in the judgment 
delivered by Lord Kingsdown in Abraham v. Abraham y 
p. 239, it is said that ' this rule must be understood to 
refer to Hindus and Muhammedans, not by birth merely 
but by' religion also.* The two cases in W. H. Mac- 
Naghten's Principles of Hind. L., Vol. II., pp. 131, 132, 
which deal vrith the case of converts from the Hindu to 
the Muhammedan faith, and rule that the heirs according 
to Hindu law will take all the property which the deceased 
had at the time of his conversion, are also authorities for 
the proposition that his subsequently acquired property is 
to be governed by the Muhammedan law. Here there is 

yy) 2 W. Mac N., 131, 182; Jowala v. Dharam, 10 M. I. A., 587. 
(*) 9 M. I. A., 196; 8. C, 1 Suth. (P. C), 1. 



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PARA. 58.] CONVERSION TO MUHAMMBDANISM. 67 

nothing to show conclusively when or how the property 
was acquired by * the great ancestor ;' there was no conflict 
as in the cases just referred to, between Hindus and 
Muhammedans touching the succession to him. Whatever 
he had is admitted to have passed to his descendants, of 
whom all, like himself, were Muhammedans ; and it seems 
to be contrary to principle that, as between them, the 
succession should be governed by any but Muhammedan 
law. Whether it is competent for a family converted from 
the Hindu to the Muhammedan faith to retain for several 
generations Hindu usages and customs, and by virtue of 
that retention to set up for itself a special and customary 
law of inheritance is a question which, so far as their 
Lordships are aware, has never been decided. It is not 
absolutely necessary for the determination of this appeal 
to decide that question in the negative, and their Lord- 
ships abstain from doing so. They must, however, observe 
that, to control the general law, if indeed the Muham- 
medan law admits of such control, much stronger proof of 
special usage would be required than has been given in 
this case " (a) . 

§ 58. These remarks of the Judicial Conmiittee were Retention of 
not necessary for the decision of the case before them, as ^^^^ ««h;««. 
they held that the plaintiff would equally have failed if the 
principles of Hindu law had been applied to his claim. 
Nor did they profess absolutely to decide that a convert to 
Muhammedanism might not still retain Hindu usages, 
and they partly rest their view against such retention 
of usage upon the ground that there was no decision upon 
the subject. The point, however, has been repeatedly 
decided the other way in Bombay, with regard to a sect 
called Khojahs, These are a class of persons who were 
originally Hindus, but who became converts to Muham- 

(a) Jowala v. J)haram, 10 M. I. A ., 611 , 687. See Hakim Khan v. Oool Khan 
8 Cftl., 836, in which the Court, with maoh reason, doabted the decision in Bup- 
ekumd V. Lain Ohowdhry, 3 C. L. R., 97, where it was laid down as settled law 
fthai^ with MahAmmedans living in a Hindu ooantrv, the presumption of joint 
Umilj and con&xnensality arises. See next paragraph. 



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68 CUSTOMARY LAW. [cHAP. Ill, 

medanism about four hundred years ago, retaining, 
however, many Hindu usages, amongst others an order 
of succession opposed to that prescribed by the Koran. 
A similar sect named the Memon Cutchees had a similar 
history and usage. In 1847, the question was raised in 
the Supreme Court of Bombay, whether this order of 
succession could be supported, and Sir Erskine Perry, in 
an elaborate judgment, decided that it could. His decision 
has been followed in numerous cases in Bombay, both in 
the Supreme and High Court, and may be considered as 
thoroughly established (b) . It has, however, been held 
that these decisions did not establish that the Ehojahs had 
adopted the entire Hindu family law, and that it could not 
be assumed, without sufficient evidence, that they were 
bound by the law of partition, so far as it allows a son to 
claim a share of the family property in his father's life- 
time (c) . Similar rulings have lately been given as regards 
the Suni Borahs of Guzerat, and the Molesalem Girasias 
of Broach, both of which tribes were originally Bajput 
Hindus converted to Muhammedanism (d) . In the former 
of these cases, Ranade, J., said ** the principles laid down 
in these decisions may be thus stated : (1) that though the 
Muhammedan law generally governs converts to that 
faith from the Hindu religion, yet (2) a well-established 
custom of such converts following the Hindu law of 
inheritance would over-ride the general presumption ; 
(3) that this custom should, however, be confined strictly to 
cases of succession and inheritance ; (4) and that, if any 
particular usage, at variance with the general Hindu law 
applicable to these communities in matters of succession, 
be alleged to exist, the burthen of proof lie on the party 

(b) Khojah'8 case, Porry, O. (>., 110; Oanghai v. Thavur, 1 Bom. H. C , 71, 
73 ; Mulbai, in the Goods of, 2 Bom. H. C, 292; Bakimbai, in the Goods o/, 12 
Bom. H. C, 294 ; Bahitnatbai v. Hirbai, 3 Bom., 84; Suddurtonnessa v. Majada, 
Cftl., 694; Haji Ismail's Will, 6 Bom., 452; Ashabai v. Haji Tyeb, 9 Bom., 
115 ; Abdul Cadur v. Turner^ ibid., 15H ; Mahomed Sidick v. Haji Ahmed, 10 
Bom., I ; Be Haroon Mahomed, 14 Bom., 19. 

ie) Ahmsdboy v. Cassumbhoy, 13 Bom., 684, over-ruling ; S. C, 2 Bom., 280. 

(rf) Bai BcUji v. BcU Santok, 20 Bom., 63, at p. 57 ; Fatesangji v. Rewar 
Harisangji, 20 Bom., 181. In the latter the claim, which was affirmed, was by 
a son for maintenance. 



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PARA. 59.] CONVERSION TO CHRISTIANITY. 69 

alleging such special costom.** Bat, although these cases 
may probably be taken as settling that an adherence to 
the religion of the Koran does not necessarily entail an 
adherence to its civil law, there may be cases in which 
religion and law are inseparable. In such a case the 
ruling of the Privy Council would be strictly in point, 
and would debar any one who had accepted the religion 
from relying on a custom opposed to the law. For 
instance, monogamy is an essential part of the law of 
Christianity. A Muhammedan, or Hindu convert to 
Christianity could not possibly marry a second wife after 
his conversion, during the life of his first, and, if he did 
so, the issue by such second marriage would certainly not 
be legitimate, any Hindu or Muhammedan usage to the 
contrary notwithstanding (e). His conversion would not 
invalidate marriages celebrated, or aflfect the legitimacy 
of issue born before that event. What its effect might 
be upon issue proceeding from a plurality of wives retained 
after he became a Christian would be a very interesting 
question, which has never arisen. 

§ 59. The second part of the rule above stated (f) is Case of the 
illustrated by the case of Abraham v. Abraham (g) referred 
to above. There it appeared that there were different classes 
of native Christians of Hindu origin. Some retained 
Hindu manners and usages, wholly or chiefly, while others, 
who were known as East Indians, and who are generally 
of mixed blood, conformed in all respects to European 
customs. The founder of the family in question was of 
pure Hindu blood, and belonged to a class of native 
Christians which retained native customs. But as he rose 
in the world and accumulated property, he assumed the 
dress and usages of Europeans. He married an East 
Indian wife, and was admitted into, and recognized as a 

(e) See Hyde v. Hyde, L. R., 1 ?. & D., 180 ; Skinner v. Orde, 14 M. I. A., 
309. 824 ; 8. C, 10 B. L. R., 125 ; S. C, 17 Suth., 77. 

if) Anie%b6. 

{jg) 9 M. I. A., 196 ; 8. C, 1 Sath. (P. C), 1. Native ChriBtians are now gov- 
erned by the Indian Snccetsion Act. Ponnuucmii v. Dontaami, 2 Mad., 209. 
S«e Sarkiet v. ProBonamoyee, 6 Cal., 794. 



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70 CUSTOMARY LAW. [CHAP. Ill, 

member of, the East Indian community. After his death 
the question arose whether his property was to be treated 
as the joint property of an undivided BUndu family, and 
governed by pure Hindu law ; or if not, whether it was to 
be governed by a law of usage, similar to Hindu or to 
European law. The former proposition was at once 
rejected. Their Lordships said (k) " It is a question of 
parcenership and not of heirship. Heirship may be 
governed by the Hindu law, or by any other law to which 
the ancestor may be subject ; but parcenership, understood 
in the sense in which their Lordships here use the term, 
as expressing the rights and obligations growing out of the 
statics of an undivided family, is the creature of, and must 
be governed by, the Hindu law. Considering tne case, 
then, with reference to parcenership, what is the position 
of a member of a Hindu family who has become a convert 
to Christianity ? He becomes, as their Lordships appre- 
hend, at once severed from the family and regarded 
by them as an outcast. The tie which bound the 
family together is, so far as he is concerned, not 
only loosened but dissolved. The obligations consequent 
upon, and connected with, the tie must, as it seems to 
their Lordships, be dissolved with it. Parcenership may 
be put an end to by a severance effected by partition ; 
it must, as their Lordships think, equally be put an 
end to by severance which the Hindu law recognizes 
and creates. Their Lordships, therefore, are of opinion 
that, upon the conversion of a Hindu to Christianity, the 
Hindu law ceases to have any continuing obligatory force 
upon the convert. He may renounce the old law by which 
he was bound, as he has renounced his old religion ; or, if 
he thinks fit, he may abide by the old law, notwithstand- 
ing he has renounced the old religion.** Their Lordships 
then reviewed the facts, showing the different usages of 
different classes of Christians, and the evidence that 

ih) 9 M. I. A.. 387 ; S. C. 1 Sath. (P. C), 6 ; Jalbhai Ardsthir y. LouU 
Manoel, 19 Bom., 680. 



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PARA. 60.] CONVERSION TO CHRISTIANITY. 71 

Abraham had, in fact, passed from one class into another, 
and proceeded to say (i) : " That it is not competent to 
parties to create, as to property, any new law to regulate 
the succession to it ab intestato, their Lordships entertain 
no doubt ; but that is not the question on which this case 
depends. The question is, whether, when there are 
different laws as to property applying to different classes, 
parties ought not to be considered to have adopted the 
law as to property, whether in respect of succession 
ab intestato or in other respects, of the class to which they 
belong. In this particular case the question is, whether 
the property was bound by the Hindu law of parcener- 
ship. * ** The law has not, so far as their Lordships can 
see, prohibited a Christian convert from changing his 
class. The inconvenience resulting from a change of 
succession consequent on a change of class is no greater 
than that which oft^n results from a change of domicil. 
The argumentum ab inconvenienti connot therefore be 
used against the legality of such a change. If such 
change takes place in fact, why should it be regarded as 
non-existing in law? Their Lordships are of opinion 
that it was competent for Matthew Abraham, though 
himself both by origin and actually in his youth a * native 
Christian,* following the Hindu laws and customs on 
matters relating to property, to change his class of 
Christians, and become of the Christian class to which his 
wife belonged. His family was managed and lived in all 
respects like an East Indian family. In such a family the 
undivided family union, in the sense before mentioned, is 
unknown (i). 

§ 60. On the same principle, where a European had illegitimate ig- 
illegitimate sons by two Hindu women, and they con- * ^ wopean. 
formed in all respects to Hindu habits and usages, it was 

(t) 9 M. I. A.. 342, 344 ; 8. C, 1 Suth. (P. C). 6. 

{k) A Hindu convert to Christianity may revert to Hindnism, and may as 
guardian of bis infant aon treat him as having also reverted, as for instance for 
the purpose of being given away in adoption. Kusum Kumari v. Satya Bangaiif 
80 Cal., 999. 



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72 CUSTOMARY LAW. [cHAP. Ill, PARA. 60.] 

held that they must for all purposes be treated as Hindus, 
and governed by Hindu law as such. " They were not an 
united Hindu family in the ordinary sense in which that 
term is used by the text writers on Hindu law ; a family 
of which the father was in his lifetime the head, and the 
sons in a sense parceners in birth, by an inchoate, though 
alterable, title ; but they were sons of a Christian father 
by different Hindu mothers, constituting themselves 
parceners in the enjoyment of their property, after the 
manner of a Hindu joint family'' (I). And it was held 
that their rights of succession inter se and to their mother, 
must be judged by Hindu law, which recognized such 
rights, and not by English law, which denied them (m). 
On the other hand, the vast majority of the class known 
as East Indians, and referred to in the judgment in 
Abraham v. Abraham, have been the illegitimate sons of 
Europeans by natives or half-caste women, who, from 
being acknowledged and cared for by their fathers, have 
adopted European modes of life. These, as already stated, 
would be governed by European law. 

(l) Myna Bayee v. Ootaram, 8 M. I. A., 400, 420 ; S. C, 2 Suth. (P. C), 4. 
(m) Same case, 2 Mad. H. C, 196. 



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CHAPTEE IV. 

FAMILY RELATIONS. 

Marriage and Sonship. 

§ 61. No part of the Hindu Law is more anomalous AnonuMesitt 
than that which governs the family relations. Not only ' 

does there appear to be a complete break of continuity 
between the ancient system and that which now prevails, 
but the different parts of the ancient system appear in 
this respect to be in direct conflict with each other. We 
find a law of inheritance, which assumes the possibility of 
tracing male ancestors in an unbroken pedigree extending 
to fourteen generations ; while coupled with it is a family 
law, in which several admitted forms of marriage are only 
euphemisms for seduction and rape, and in which twelve 
sorts of sons are recognized, the majority of whom have 
no blood relationship to their own father. I am not 
aware that any attempt has hitherto been made to 
harmonise, or to account for, these apparent inconsisten- 
cies. It has been suggested, however, that some of the 
peculiarities of the system may be referred to the practice 
of poK'^andry, which is supposed to have been once 
universal (a). It seems to me that the proved existence 
of such a practice would not account for the facts. I also 
doubt whether polyandry, properly so called (i), ever 

(a) I refer, of coarse, to the views pat forward by Mr. MacLennan throaghoat 
his Studies in Ancient History, 1876. Also in two articles in the ** Fortnightly 
Review," May and Jane, 1877. McLennan. Patriarchal Theory, 1886. 

(6) By polyandry, properly so called, I mean a system ander which a woman 
is the 1^^ property of several husbands at once, as among the Todas ; or ander 
which a woman, who is legally married to one husband, has the right, which he 
cannot dispute, to admit other men at her own pleasure, as among the Nairs. I 
ezdude cases of mere dissolateness. No one would apply the term polyandry to 
the institution of the cavalier aervente in Italy or Spain. I also exclude cases 
in which a woman is allowed to offer herself to a man, who claims a sort of 
semi-divinity, as in the case of the Maharajas of Bombay ; and the analogous 
cases of promiscuous prostitution of married women as a sort of religious rite. 
See Dubois 601, Man. Madras i., 106; Cochin Census 1891, § 176; Wilson 
Works i., 268. 



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74 MARRIAGE AND SONSHIP. [cHAP. IV, 

prevailed among the races who were governed by the 
system now under discussion, while they were governed 
by it. It is quite possible that it may have prevailed 
among them at a still earlier stage of their history. But 
this circumstance would be immaterial, if there is reason 
to suppose that they had escaped from its influence before 
the introduction of the Family law, which we find in force 
at the time of the earliest Sanskrit writings. Still more, 
if that law can be accounted for on principles which have 
nothing to do with polyandry. It will be well, however, 
to clear the ground for the discussion, by enquiring what 
are the actual facts. 

Polyandry § 62. Among the non- Aryan races of India, both the 

Aryan races. former and the present existence of polyandry is beyond 
dispute. It is peculiarly common among the Hill tribes, 
who are probably aboriginal ; but it is also widely diflfused 
among the inhabitants of the plains (c). Among the 
Nairs, the women remains in her own home after her mar- 
riage, and there associates with as many men as she 
pleases (d). The Teehurs of Oude ** live together almost 
indiscriminately in large communities, and even where two 
people are regarded as married, the tie is but nominal " (e). 
Among the Western Kalians of Madura, ** it constantly 
happens that a woman is the wife of either ten, eight, six, 
or two husbands, who are held to be the fathers jointly 
and severally of any children that may be born of her body. 
And still more curiously, when the children of such a 
family grow up, they, for some unknown reason, style 
themselves the children, not of ten, eight, or six fathers, as 
the case may be, but of eight and two, or six and two, or 
four and two fathers" (/). Among the Kannuvans of 
Madura, " a woman may legally marry any number of men 

(c) In the Punjab it is still found existing in Seoraj, LahonI and Spiti. Pan* 

t'ab Castoroary Law, II, 186, 187, 191. Here the joint husbands are always 
brothers. 

(d) See po$t § 99. 

{e) Lubbook, Ori^n of Man (ed. 1870), 78, citing the People of India, by 
Kaye and Watson, ii., 86. 
(/) Madura Manual, Pt. II, 64. 



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PARA. 62.] POLYANDRY AMONG THE ARYANS. 76 

in succession, though she may not have two husbands at 
one and the same time. She may, however, bestow favours 
on paramours without hindrance, provided they be of 
equal caste with her'* (g). Among the Todas of the 
Nilgiris, as in Thibet, the wife is the property of all the 
brothers, and lives in their home (A). A similar custom 
prevails among the Tiyars, or palm cultivators of Malabar 
and Travancore (i), and among the low caste Malyalis of 
Cochin. It formerly existed, but has now almost died out, 
among the astrologer caste on the Malabar Coast (k). 
Among the Badagas of the Nilgiris " Immorality within 
the family circle is not regarded very harshly — a tolerance 
that is no doubt a survival of polyandrous customs'* (I). 
Mr. O. Chanda Menon, in his Memorandum annexed to 
the Malabar Marriage Eeport, p. 103, says : " Among the 
carpenter and blacksmith classes in Malabar, polyandry 
exists as an institution, and we see every day the four or 
five chosen husbands among this class celebrating their 
polyandrous marriage openly according to their caste 
rules and with much ceremony and pomp." Polyandry 
in its patriarchal and simplest form is foimd in the Hima- 
layan valleys, chiefly wherever the food-supply of the 
surrounding country is scarce. It is found in the North- 
West Provinces among both Buddhist and Brahmanic 
tribes. In the Northern plains of India, there are also 
traces of this custom in certain tribes (m). In the 
Pimjab, polyandry is confined to the Kulu sub-division. 
The rule of inheritance is that of three or four brothers 
who have a wife in common, the eldest is deemed the father 
of the first-born son, the second of the next, and so on. 
This is an absolute presumption of law, even though the 
facts are opposed to it. Among the monks of Lahul, 
polyandry arises from the fact that monks who have no vow 
of celibacy enter into monasteries, and remain in communion 

(a) BCadura Bfanual, Part II, 34. {h) Breeks Primitive Tribes, 10. 

(•1 Madras Census Report, 162. {k\ Coohin Censas, 1891, § 180; Census, 

(0 Censas, 1891, xiii., 248. 1891. xiii., 273, Mai. Man., 1, 141. 

(m) Censas of 1891, General Report, 264. 



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76 MARRIAGE AND S0N8HIP. [cHAP. IV,. 

with their elder brother, who stops at home and manages 
the estate (n). In Assam polyandry is stated to be of 
rare occurrence, but not unknown. The form in which a 
woman enters a family as the wife of several brothers, or 
other near relations, still flourishes among the Bhutias (o)» 
Among the Tottiyars, a caste of Madura, it is the usage 
for brothers, uncles, nephews and other relations, to hold 
their wives in common, and their priests compel them to 
keep up the custom, if they are unwilling ; outside the 
family they are chaste (j?). An indication of similar 
practices is probably to be found in the license given to 
girls before their marriage in some of the inferior castes on 
the West Coast (q) . Among many tribes in Assam, so long 
as a woman remains unmarried, chastity is not usually 
expected of her, and she may dispense her favours to whom 
she pleases. But when once she is married, this freedom is 
no longer tolerated. Adultery is very severely punished (r) • 

§ 63. It is difficult to believe that polyandry in its lowest 
among Aryans, form, as authorising the union of women with a plurality of 
husbands of diflferent family, could ever have been common 
among the Aryan Hindus. Such a system, as Mr. McLen- 
nan points out (5), would necessarily produce a system of 
kinship through females, such as actually exists among the 
polyandrous tribes of the West Coast of India. Among 
the Ehasis and Garos of Assam, inheritance goes through 
the female. The tribes are divided into clans. Marriage 
within the clan is forbidden. In most cases the children 
enter into the clan of their father, but among the Ehasis 
and Garos they enter into the clan of their mother, who 
remains with her own people instead of living in the family 
of her husband (t). This seems to have nothing to do 

(n) Census of 1891, Punjab Report, xix.. Q3A. 

(o) Censas of 1891, Assam Report, I, 119. 

(p) Dubois, 18, Madura Manual, Part II, 82. 

{q) S. Can., Man., I, 162, 170. 

(r) Census of 1891, Assam Report, I, 118. 

{$) Studies in Ancient History, 124, 135. Mr. L. H. Morgan's objections 
(p. 615) to the general proposition stated by Mr. McLennan as to kinship through 
females seem not to apply to the limited form of that proposition, as stated m 
the text. it) Census of 1891, ARsam Report, I, 119, 122. 



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PARA. 63.] POLYANDRY AMONG THE ARYANS. 77 

with polyandry, which apparently only exists among 
the Bhatias (u). Now, the most striking feature in the 
Aryan Hindu customs is the strictness with which kin- 
ship is traced through males. Except in Bengal, where 
the change is comparatively modern, agnates to the four- 
teenth degree exclude cognates. This rule is connected 
with, if it is not based upon, their religious system, the 
first principle of which was the practice of worshipping 
deceased male ancestors to the remotest degree (v). This, 
of course, involved the assumption that those ancestors 
could be identified with the most perfect certainty. The 
female ancestors were only worshipped in conjunction 
with their deceased husbands. We can be quite certain 
that this system was one of enormous antiquity, since 
we find exactly the same practice of religious offerings 
to the desrd prevailing among the Greeks and Romans. 
We may assert with confidence that a usage common to 
the three races had previously existed in that ancient stock 
from which Hindus, Greeks, and Romans alike proceeded. 
No doubt Mr. McLennan points out numerous indications 
of kinship through females among the Greeks, especially 
in the case of the Trial of Orestes. But, if I may be 
allowed to say so, all these instances seem to be less the 
voice of a living law, than the feeble echoes of one sound- 
ing from a past that was dead (w). I by no means deny 
that polyandry of the second, or Thibet, type, may have 
existed among the Hindu Aryans. But I think that at 
the earliest times of which we have any evidence it had 
become very rare, and had %llen into complete discredit 
even where it existed. Also, that everything which we 



lu) Censasof 1891, Assam Report, I. 119. 

(r - - ~ 



v) Mana, iii., 5 81 -91, 122—126, lb9, 193—281, 282—284 ; Spencer, Sociology, 
i.. 804, Appx. 1 ; M. MUller, A. 8., Lit, 386 ; Ind. Wied., 256. 

(u») See Teulon, La M6re, 7. '* Sous les conquerants Aryas et Semites 8'6tend 
•oarent. BaiTant rheoreaae ezpreMion de M. d'Eckstein, nn humus aoientijlque. 
Sons cette coache d'dires humains, d'antres, raoee ont v^u, ol^^isBant & de** lois 
qoi, si eUea n'oni 6t^ gdndrales, ont r4gn^ da moins snr d'immenses gtendnea. 
Lean ciriliaations reposaient ear le droit de la nUre, dbc*' See also Tealon, 62, 
63. " Partoat, oH lea Aryas se sont 6tabUs, ils ont introdait avec enx la farailie 
goarern^ par le p^re." 



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78 



Eyidenoes of 
polyandry. 



Draapftdi. 



MAKRIAGE AND SONSHIP. [CHAP. IV, 

find in the oldest Hindu laws can be accounted for with- 
out any reference to it. 

§ 64. What then is the actual evidence upon the 
subject ? The earliest indication of polyandry of whicli I 
am aware is to be found in a hymn in the Big- Veda, 
which is addressed to the two Asvins. " Asvins, your 
admirable horses bore the car which you have harnessed 
first to the goal for the sake of honour ; and the damsel 
who was the prize came through affection to you, and 
acknowledged your husbandship, saying, you are my 
lords ** (x). This evidently points to the practice of 
Svayamvara, when a maiden of high rank used to offer 
herself as the prize to the conqueror in a contest of skill, 
and in this instance became the wife of several suitors at 
once. It is exactly in conformity with the well-known 
case of Draupadi, who, as the Mahabharata relates, was 
won at an archery match by the eldest of the five Pandava 
princes, and then became the wife of all. As far as I 
know, this is the only definite instance in which an Aryan 
woman is recorded to have become the legal permanent 
wife of several men. Undoubtedly, as Professor Max 
Mailer remarks (y) the epic tradition must have been 
very strong to compel the authors to record a proceeding 
so violently opposed to Brahmanical law. Yet the very 
description of the transaction represents it as one which 
was opposed to public opinion, and which was rather 
justified by very remote tradition than by existing practice. 
I take the account of it given by Mr. McLennan {z). 
** The father of Draupadi is represented by the compilers 
of the epic as shocked at the proposal of the princes 
to marry his daughter. ' You who know the law,* he 
is made to say, ' must' not commit an unlawful act which 
is contrary to usage and the Vedas.' The reply is, * The 
law, King, is subtle. We do not know its way. We 
follow the path which has been trodden by our ancestors 
in succession.' One of the princes then pleads precedent. 



(ff) Cited Wheeler, Hist, of India, ii., 602. 

(m) Fort. Rev., May 1877, 698. 



iy) A. 8., Lit., 46. 



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PARAS. 64 & 65.] POLYANDRY AMONG THE ARYANS. 79 

* In an old tradition it is recorded that latila, of the family 
of Gotama, that most excellent of moral women, dwelt 
with seven saints ; and that Varski, the daughter of a 
Mxmi, cohabited with ten brothers, all of them called 
Prachetas, whose souls had been purified with penance.* '* 
Now, upon this statement the alleged ancestral usage 
appears really to have been non-existent. The only 
specific instances that could be adduced were certainly not 
cases of marriage. They were instances of special indul- 
gence allowed to "Rishis, who had passed out of the order 
of married men, and whose greatness of spiritual merit 
made it impossible for them to commit sin (a). It is also 
to be remembered that the Pandava princes were 
Kshatriyas, to whom greater license was allowed in their 
dealings with the sex, and for whom the loosest forms of 
marriage were sanctioned (6). If polyandrous practices 
existed among the aborigines whom they conquered, these 
would naturally be imitated by them. Just as the English 
knights who settled beyond the Pale became Hibemis 
Hibemiores. On the other hand, in a passage of the 
Bamayana (c), where the Kakshasa meets Kama and his 
brother wandering with Sita, the wife of the former, the ^•™* "^ s»*»' 
giant accosts them in language of much moral indignation, 
saying, " Oh little dwarfs, why do you come with your 
wife into the forest of Dandaka, clad in the habit of 
devotees, and armed with arrows, bow and scimitar ? Why 
do you two devotees remain with one woman ? Why are 
you, oh profligate wretches, corrupting the devout sages ? ** 
The giant seems to have looked upon polyandry with the 
same abhorrence as Draupadi*s father. 

§ 65. Other passages of the Mahabharata are referred 
to, which seem rather to evidence the greatest grossness ^^2ISiKe\te 
and want of chastity in the relations between the sexes, 
than anything Uke polyandry. It is said that " women 

(a) See ApMiamba, ii., vi., 13, $ 8—10, and post § 66. (d) Mana, Hi., § 26. 

(e) Cited Wheeler, Hist, of India, ii., 241. Mr. V. N. Mandlik (p. 897) taTa 
that the original passage contains nothing to show that the giant aooased the 
brothers of having a joint wife. 



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80 MARRIAGE AND SONSHIP. [CHAP. IV, 

were formerly unconfined, and roamed about at their 
pleasure independent. Though in their youthful in- 
nocence they abandoned their husbands, they were guilty 
of no offence ; for such was the rule in early times. This 
ancient custom is even now the law for creatures born as 
brutes, which are free from lust and anger. This custom 
is supported by authority, and is observed by great Rishis, 
and it is still practised among the northern Kurus." 
Dr. Muir goes on to add, ** A stop was, however, put to 
the practice by Svetaketu, whose indignation was on one 
occasion aroused by a Brahman taking his mother by the 
hand, and inviting her to go away with him, although his 
father, in whose presence this occurred, informed him that 
there was no reason for his displeasure, as the custom was 
one which had prevailed from time immemorial. But 
Svetaketu could not tolerate the practice, and introduced 
the existing rule. A wife and a husband indulging in 
promiscuous intercourse were thenceforward guilty of 
sin ** (dl). So the Gandhara Brahmans of the Punjab are 
said " to corrupt their own sisters and daughters-in-law, 
and to oflfer their wives to others, hiring and selling them 
like commodities for money. Their women, being thus 
given up to strangers, are consequently shameless;** as 
might have been expected (e). In exactly the same way, 
the Koravers of Southern India, who are not polyandrous, 
sell and mortgage their wives and daughters when they 
are in want of money (/ ) . Of course, delicacy, or chastity, 
must be utterly unknown in such a state of society. But 
these very texts seem to show that each wife was appro- 
priated to a single husband, though he was willing to 
allow her the greatest freedom of action, {g). 

(d) Muir, A. S. T., ii., 418 (2nd ed.). The first passage is cited by Mr. McLen- 
nan, p. 173, n ., from the Ist ed., ii., 336. See also other passages from the Maha- 
bharata, cited 2 Dig., 892—394. 

(e) Muir, A. 8. T., ii., 482, 483. (/) Madras Census Report, 167. 
Ig) Mr. V. N. Mandlik says of the passages cited from Dr. Muir "To me the 

whole chapter shows that the northern Kunxs were then what the Nairs in 
Malabar are now; so that a man did not know his own father." Bat he admite 
that these and similar passages *' point to times anterior to the compilation of 
the Vedas. For even m the earliest Veda marriage appears to have become a 
well-established institution," pp. 396—397. 



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PARAS. 66 & 67.] EARLY FAMILY LAW. 81 

§ 66. When we come to the I aw writers it is quite certain Early Pamfly 

Law. 

that a woman could never nave more than one husband at 

a time. But we also find that sonship and marriage seem 

to stand in no relation to each other. A man's son need 

not have been begotten by his father, nor need he have 

been produced by his father's wife. How is such a state 

of the family, which appears to set genealogy at defiance, 

reconcilable with a system of property which is based 

upon the strictest ascertainment of pedigree ? I believe Principle of 

the answer is simply this — that a son was always assigned ^^'^"^"P' 

in law to the male who was the legal owner of the mother. 

Further, that the filial relation was itself capable of being 

assigned over by the person to whom the son was subject, 

or by the son himself if emancipated. If I am right in 

this view, the theory that the levirate is invariably a 

survival of polyandry will fall to the ground. 

§ 67. The various sorts of sons recognized by the early Different sorte 
writers were the following : — The legitimate son (aurasa), ^^ "^' 
the son of an appointed daughter (putriha putra)^ the son 
begotten on the wife (kshetraja), the son bom secretly 
(gudhaja), the damsel's son (kanina), the son taken with 
the bride (sahodha), the son of a twice-married woman 
(paunarhhava) , the son by a Sudra woman {nishada), or by 
a concubine (parasava), the adopted son {dattaka), the son 
made (kritrima), the son bought (kritaka), the son cast off 
(apaviddha), and the son self -given (svayamdattaka) (A). 
Of these it will be at once seen that the five last never could 
be the actual sons of their father, and of the other nine 
only the first and the last two need be. Of the remaining 
seven, some necessarily, and others probably, were not 
begotten by him at all. Further, many of these were not 
even the offspring of his wife. The problem for solution 
is, how they came to be considered as his sons ? To answer 
this, we must enquire into the Hindu idea of paternity. 

Ih) Baudhayana, xvti., 3, § 10—24 ; Gantama, xxviii. , § 32, 88 ; Vasiahtha, xvii., 
S 9—22 ; Vinhnu, xr., % 1—27 ; Narada, xiii., \ 17—20, 46—47 ; Mann, ix., $ 127 
—140, 168—184 ; Derala, 8 Dig., 168; Yama, i6., 164 ; Yajnavalkya, ii., § 128— 

6 

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MARRIAGE AND 80NSHIP. [cHAP. IV, 

§ 68. In modem times children are a luxury to the rich, 
an encumbrance to the poor. In early ages female offspring 

182; Mit., i., 11. Apastamba stands alone among the earlier writers in only 
recognizing the legitimate son, ii., vi., 18, § 1—11. 

The following table shows the order in which the different sons are placed 
by the various authors. 



•U09 UdAlil-JIdS 

•tijpi^^«puniX»Ag 


«^ O — OWW^OJN ] ^ 


•JUO ^BWO UOg 

-BMPpiAvdv 
vjq8noq uog 

1 "»ll«»U3 


t*ec ^ «0 <N 00 t- o> <0 t> •* » 


o« o» o> cooo»«f^»ao> 


•epvtu uos 


lO'»*« j -* Oir^ 1 «J^OO 1 


•uos po^dopv 


•* 00 X CO t- OS 0> t- 05 o» 00 •* 


'creinoM 

wpng JO uoq 

npiiqsiK 


2 1 £1 2 1 l:: 1 1 1^2 

OSX) t- 00 — lOXOt-X^OO 
f-0> ■* O 50 t* •* CO X •<« OS o 


•epcaq 
i !)atiad9jd }o aov; 
•wqpoqws 


' UKIUOM pOlJ 

-jvm-aa!M<) jo uoc; 
•«A«qqjiiunB^ 


•ujoq ^Ciqajoas 
•^tnqpnf) 

•aoB BjasurtQ 
•wuia«x 


too CO o ^cococo tocos« o 


Xt- »0 t- «5 ^ »0 "* -* U5 O t- 


•n>^q8n«p 
pa^aioddv }o aof; 


<NO 00 eiOOCOOC9CC«CO 


•ejiM uo 

ua^^oBaq uog 

•wrwjaqs^ 


03Cfl(N «««<N<N0O(MXCJ 


•8U08 a^«uii'ji;ioq 
"Bsuiny 











i 


•a 


J . 


« 


g 


1 ® 


s 

s 


'5 


•1 •" 






-& 8 


•5 


s. 


1 'Ir 


1 


s 


1 i 


« 




•^ -3 


.£3 


o 


^3 U 


>«» 




«s 


o 


c 


^ iO 




s 


« -r 


s 


1 


« 1 


1 


5 


i ^ 




tf 


X ^ 


_s 


E 


9 a 




4 


•5 s 


1 


9 


1 >? 


^ 


>» 


o > 




.o 






•s 


at Q 




Sc 


"o . i 


$ 


"1 


SS5 


s 


. .2 


■Ssl 


* 


e^ - 


•c— ' a 




•^kI 


,§«■•«< 

■^K-2 


T3 


".i-l 


S'-^ 




ioz 


.11^ 


1 


«iiiri 


^ 


■ S'3 


*» ^ c 


c 


^.•5. 


s-bbi'3 


1 

1 

a 
o* 


|i::lf.i 


ee 


. rf'JS o« 


^ ^ <„ * 


g;53>'C-g 


i?^c 




y^i 


>^ 


_^»^ei • 


i-i" 



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PARAS. 68 & 69.] HINDU NOTION OF PATERNITY. 83 

stood in the same position, but male issue was passionately 
prized. The very existence of a tribe, surrounded by 
enemies, would depend upon the continual multiplication 
of its males. The sonless father would find himself without 
protection or support in sickness or old age, and would see 
his land passing into other hands, when he became unable 
to cultivate it. The necessity for male offspring extended 
in the case of the Aryan even beyond this world. His 
happiness in the next depended upon his having a continu- 
ous line of male descendants, whose duty it would be to 
make the periodical offerings for the repose of his soul. 
Hence the works of the Sanskrit sages state it to be the 
first duty of man to become the possessor of male offspring, 
and imprecate curses upon those who die without a son (i). 
Where a son was so indispensable, we might expect that 
every contrivance would be exhausted to procure one. 
What has been already said about the relations between 
the sexes in early times would make it certain that neither 
delicacy, nor sentiment, would stand in the way. 

§ 69. A frequent subject for discussion in Manu is as to Theory of 
the property in a child. He says: "They consider the g-^lS^*^ ^""""^ 
male issue of a woman as the son of the lord ; but on the 
subject of that lord, a difference of opinion is mentioned in 
the Veda, some giving that name to the real procreator of 
the child, and others applying it to the married possessor 
of the woman. *' He argues the point on the analogy of 
seed sown by a stranger on the land of another, or of flocks 
impregnated by a strange male. He sums up by declar- 
ing : ** Thus men who have no marital property in women, 
but sow in the fields owned by others, may raise up fruit to 
the husbands, but the procreator can have no advantage 
from it. Unless there be a special agreement between the 
owners of the land and of the seed, the fruit belongs clearly 
to the landowner, for the receptacle is more important 
than the seed. But the owners of the seed and of the soil 

(») Vaaish., xvii., $ 1—5; Vish., xv., § 43—46; Manu, vi., § 36, 87; ix., § 46 
Atn., D. M., i.. S 3. 



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84 MARRIAGE AND SONSHIP. [CHAP. IV, 

may be considered in this world as joint owners of the crop, 
which they agree by special compact, in consideration of 
the seed, to divide between them" (i). The conflicting 
opinions referred to by Manu are probably the texts men- 
tioned by the early Sutra writers {I). In one of these 
passages quoted from the Vedas, a husband is reported as 
announcing, with considerable naivetS, that he will not any 
longer allow his wives to be approached by other men, 
since he has received an opinion ** that a son belongs to him 
who begot him in the world of Yama. ** In this world it is 
to be observed, there seems to be no doubt entertained that 
the son begotten by others on his wife would be his own. 
i^moiihe § 79. It was upon this principle — viz,, that a son by 

whomsoever begotten, was the property of the husband of 
the mother — that the kshetraja, or son begotten upon a 
wife, ranked so high in the list of subsidiary sons. The 
Mahabharata and Vishnu Purana relate how king Saudasa, 
being childless, induced Vasishtha to beget for him a 
son upon his wife Damayanti. So king Kalinga is 
represented as requesting the old Bishi Dirghatamas to 
beget offspring for him ; and Pandu, when he became 
a Sunnyasi, accepted, as his own, sons begotten upon 
his wife by strangers. The same passage of the Maha- 
bharata which relates how Svetaketu put an end to 
promiscuous intercourse on the part of husbands and 
wives, also states that a wife, when appointed by her 
husband to raise up seed to him by connection with 
another man, is guilty of sin if she refuses (m). And so the 
law-books expressly sanction the begetting of offspring by 
another on the wife of a man, who was impotent, or dis- 
ordered in mind, or incurably diseased ; and the son so 
begotten belonged to the incapacitated husband (n). No 

ik) Mann, iz., § 82—44, 48—56, 181 ; x., S 70; Nar., xii., § 56—60. Viramit., 
p. 104, S 4. 

{I) Apast., ii., Ti, 18, § 6, 7, and note ; Baadh., ii., 2, § 35; Vasish., zvi., § 6, 7 ; 
Gautama, xviii., 4 11. 

(w) Muir.. A.8.T.,i., 418,419; Wilson, Works, v., 810: M. MtlUer. A. 8.. 
Lit., 56; 3 Dig., 263. 

(n) Baadh., u.. 3, § 12; Mann, ix., § 162, 167, 208. Section 162 shows that a 
man might hare a son begotten by proooration, and also a son begotten by himself. 



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PARAS. 70 & 71.] HINDU NOTION OP PATERNITY. 85 

ruleis laid down that the person employed to beget offspring 
during the husband's life should be a near relation, or any 
relation (o). In fact, in the instances just mentioned, the 
procreator, who was called in aid, was not only not of the 
same family, but was Jnot even of the same caste, the 
owner of the wife being a Eshatriya, and his assistant 
being a Brahman. 

§ 71. The begetting of offspring upon the widow of a offspring 
man who had left no issue is, of course, merely an exten- ^^t)*"^^^ 
sion of the practice just discussed (p). But there was 
this difference between the two cases ; that in the latter, 
for the first time, the element of fiction was introduced. 
In the former case, the husband became the father, not 
by any fiction of paternity, but by the simple fact that 
he was the owner of the mother. But after his death the 
ownership had ceased ; unless, indeed, by another fiction, 
he was considered as still surviving in her (q). Therefore, 
unless the husband had given express directions during 
his lifetime, the process to be adopted was to be as like as 
possible to an actual begetting by him, or was to be such 
a substituted begetting as he would probably have 
sanctioned. Hence, such a connection was never per- 
mitted when the widow had issue already. Nor was it to 
be continued further than was necessary for the purpose 
of conception. Nor was it allowable to procreate more 
than one son, though at one time it was thought that a 
second might lawfully be produced (r) . Nor was the widow 
allowed to consort with any one she pleased, or to do so at 
all merely of her own free will. The procreator was to be 
the brother of the deceased if possible, or, if he was not 

(o) Aposfcambii, who is strongly opposed to the Niyoga, says (ii., z.,27, § 2) 
that a husband shall not make over his wife, who oooapies the position of a gen- 
tiliBf to others than to his gentUin in order to oaase children to be begotten for 
himself. It is probable that this refers to an anthority to beget after the hus- 
band's death, if not, it is merely a restriction on the old usage. 

(p) This alone is the leviauU referred to by Bir. Mcliennan, see Fort. Rev., 
May 1877. The general usage of begetting a son upon the wife of another on his 
behalf was known by the term Niyoga, (that is, order or commission) of which 
leviraie was only a special, instance. 

(g) Manu, ix., § 46 ; Vrihaspati, 8 Dig., 458. 

(r) Manu, ix., § 68-63, 148. 117 ; Narada, xii., § 62, 80—88 ; Yaraa, 2 Dig., 468. 



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86 MARRIAGE AND SONSHIP. [cHAP. IV, 

attainable a near sapinda (s). This was either to enhance 
the fiction of paternity ; or, perhaps, still further to 
exclude any personal feeling on the part of the widow. 
Further some authorisation was necessary, though it is 
not very clearly stated by whom it was to be given. In a 
legend mentioned in the Mahabharata, Vyasa begets 
children on both the widows of his brother, at the request 
of Satyavat, the mother of the deceased (t), Gautama 
asserts that the widow must obtain the permission of her 
Gurus. Narada speaks of the authorisation as being given 
to the widow by her spiritual parents, or by her relations. 
Manu merely speaks of her being authorised, to which 
Kulluka Bhatta adds by the husband or spiritual guide. 
Yajnavalkya refers to the authority of the latter (u). It 
is quite plain that even the brother could not perform the 
act without some external authority. 

Niyogftnot § 72. If I am right in this view, it is evident that the 

connected with . ^ . 

polyandry. levirate, as practised among the Aryan Hmdus, was not a 
survival of polyandry. The levir did not take his brother's 
widow as his wife. He simply did for his brother, or other 
near relation, when deceased, what the latter might have 
authorised him, or any other person, to do during his life- 
time. And this, of course, explains why the issue so raised 
belonged to the deceased and not to the begetter. If it 
were a relic of polyandry, the issue would belong to the 
surviving polyandrous husband, and the wife would pass 
over to him as his wife. Such a course would have been 
natural enough even among Hindus, and, as we shall see 
presently, the practice actually existed (v). But it is some- 
thing completely dilBferent from the Hindu Niyoga, And 
the same explanation which accounts for the origin of the 

{$) Gautama, xviii.. § 4--7, xxviii., §23; Manu, ix., § 69 ; Narada, xii., § 80— 8B; 
Yajnavalkya, ii. , § 128. Mann permitB either a brother or another. Yajnavalkya, 
either a relative or another. Kulluka Bhatta in his gloss adds the wojd sapinda 
as limiting the vague word another. 

it) Ind. Wisd.,876. 

(m) Gautama, xviii., § 6 ; Narada, xii., § 80—87; Manu, ix., S 68; Yajnavalkya, 
ii., S 68. 

(t») Post § 73. 



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PARAS. 72 & 73.] HINDU NOTION OP PATERNITY. 87 

levirate accounts also for its extinction. As soon as any 
idea of mutual fidelity, sentiment, or delicacy, arose as an 
element in the marriage union, the notion of allowing 
issue to be b^otten on a wife would become most repul- 
sive. And as that practice died away, the usage of 
authorising it in regard to a widow would naturally die 
away also, though it might continue longer in the latter 
case than in the former. We can see that a considerable 
amount of refinement in the relations between man and 
wife had already spnmg up at the date of our compilation 
of Manu (w) ; and we can understand how it came about 
that texts were interpolated forbidding a practice which 
the preceding texts had sanctioned and regulated {x). The 
Niyoga would also become unpopular, as partition became 
more common. So long as the family remained undivided, 
the afterbom son would be merely an additional mouth to 
feed, accompanied by a pair of hands to work, and he 
would take upon himself the entire duty of performing the 
recurring ceremonies to his quasi-father. ;gut as soon as 
the practice of division sprang up, he would be entitled to 
claim a share, and to stand generally in his parentis place. 
At one time, too, it appears that the widow had a right to 
manage tlie property of her deceased husband on his 
behalf (y). Naturally the relations would cease to authorise 
an act which tended to defeat their own rights. 

§ 73. The actual marriage of a widow with the brother Marriage of 
of her deceased husband is, of course, something quite hosbMici's 
different from the levirate. This was sanctioned by Manu 
in the single case of a girl who had been left a virgin 
widow (z) . The practice still exists in many parts of India. 
It has been found among the Ideiyars, a pastoral race of 
Southern India ; among the Gaudas of South Canara, and 
the Savaras of Yizagapatam and Ganjam ; in Orissa, among 
the Jat families of the Punjab, both Brahman and Eajputs 



(w) Maoq, iii., S 45, 56—62; ix., S 101—105. (x; Manu, ix., § 64—68. 

{y) Mano, iz., § 210, 146, 190. (je) Manu, ix., $ 60. 70. 



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88 MARRIAGE AND SONSHIP. [cHAP. IV, 

and among some of the Rajput class of Central India (a). 
In the Punjab such marriages are considered of an inferior 
class, and do not give the issue full right of inheritance (b). 
Marriages to the husband's brother may in some cases be a 
relic of polyandry, but they seem to me capable of a much 
simpler explanation. There is nothing in the usage of itself 
unnatural and revolting. The marriage of a woman with 
two brothers successively is merely the converse of the 
marriage of a man with two sisters successively, a sort of 
union which, though illegal, is by' no means uncommon in 
Great Britain, and which is absolutely legal in several of 
our colonies. Marriage with a deceased wife's sister is be- 
lieved to be very common among the lower orders, from the 
simple fact that a sister-in-law very frequently becomes a 
permanent member of the family during the life of the sister, 
and continues in it after her death. She naturally takes 
the place of her sister as mother and wife. Exactly the 
same facts would lead to the converse result in a Hindu un- 
divided family. On the death of the husband the widow 
would continue to reside in the same house with her 
brother-in-law. He would take possession of all the 
effects of his deceased brother, not as heir but as manager 
of the family corporation by virtue of seniority (c). At a 
time when women were regarded merely as chattels (d), 
the wives of the deceased would naturally pass over to the 
manager, who was bound to support them. To take 

(a) Madras Cenaaa Rep., 149; S. Can. Man., I., 162; Census 1891, ziii., 264, 
267. Punjab Cust., 94 ; Lyall, Port Rev., Jan. 1877, 108; Sarvadhikari, 628, n. 

(6) Census of 1891 General Report, 266. 

(c) Among some tribes of the Punjab the custom is that the widow should 
marry not her husband's elder brother but his younger brother. Punjab Cus- 
tomary Law, II. , 94. 

{d) The prohibition against dividing women at a partition (Manu, ix., § 219 ; 
Gautama, zzviii., § 46) seems to point to a time when they had been looked u[N>n 
merely as a part of tne family property. Perhaps those curious texts which 
state ttie liability of a man who had taken the wife, or widow, of another to pay 
his debts, may be founded on the same principle (1 Dig., 821—823, 2 Dig., 476 ; 
Narada, ui., §21— 26; V. May, v., 4, § 16, 17; Spencer, i., 680; poat^d^). 
Accordingly Narada says (iii., §28, 24):— "In all the four classes, wives and 
goods go together ; he who takes a man's wives takes his property also." ''The 
wife is considered as the dead man's property." In Assam the heir to a Miri 
estate inherits with it the whole body of bis father's wives, with the exception of 
his own actual mother. Among the Garos the bridegroom by hif* marriage pledgee 
himself to the reversion of bin mother-in law. 



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PABA. 74.] MARRIAGE WITH HUSBAND*S BROTHER. 89 

the illustration from Scandinavian history cited by Mr. 
McLennan : " Now Bork set up his abode with Mordissa, 
and takes his brother's widow to wife with his brother's 
goods ; that was the rule in those days, and wives were 
heritage like other things.*' The only difference is that 
the Hindu Mordissa would have been living all along in 
the house with the Hindu Bork, and that on the death of 
her husband the latter would have become her natural 
protector and legal guardian. The transition to husband 
is so natural that it is strange it did not more universally 
take place. 

§ 74. The same principle, mz,^ that the son belongs to Son bom in 
the owner of the mother, can be shown with greater ease 
in the other cases. The secretly born son is described by 
Vishnu as follows : " The son who is secretly born in the 
house is the sixth. He belongs to him on whose bed he 
was born " (e). Manu is to the same effect, and the gloss 
of Kulluka Bhatta shows that the mother is supposed to 
be a married woman, whose husband's absence makes it 
certain that he was not the father. Yet the child belongs 
to him (/). In the case of the son of a damsel {Kanina) Son of damsel ; 
born in her father's house, if she marries, the son belongs 
to the husband, and inherits to him. If she does not 
marry, he belongs to, and is the heir of, her father, under 
whose dominion she remains (jr). So, "if a pregnant or bride; 
young woman marry, whether her pregnancy be known or 
unknown, the male child in her womb belongs to the 
bridegroom, and is called a son received with his bride" 
(Sahodha) (h). As regards the sons of twice-married or twice-nuffried 
women (paunarbhava), and of disloyal wives, Narada lays ^<>"**"- 
down the same rule. " Their offspring belongs to the 
begetter, if they have come under his dominion, in con- 

(e) ViBhnu, xr., § 18, 14. (/) Manu, ix., I 170 ; Viramit., ii., 2, § fi. 

(g) VUhnn, xv., § 10—12; Vasightha, xvii., § 14 ; Naiuda, xiii., § 17, 18. The 
Viramitrodaya, p. 113, sayH that the child belongs to the father of the woman or 
husband, according as she was affianced or not at the time of birth. Tliis is also 
(he Tiew taken by Nanda Pandita in the Vaijayanti. Jolly, § 162. 

{h) Mann, ix., § 178 ; Vishnu, xv., S 15—17 ; Narada, xiii., § 17. 



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90 MARRIAGE AND 80NSHIP. [cHAP. IV, 

sideration of a price he had paid to the husband. But the 
children of one who has not been sold belong to her 
husband'* (i). Of course the children of a woman who 
had actually been married to a second husband would, d 
fortiori J have belonged to him (A). 

Son byaconcti- § 75. The Same considerations seem to govern the case 
of a child by a concubine, who is classed by some writers 
with the child by a Sudra (Z). The union of a man of the 
higher classes with a Sudra was, in the later law, though 
not originally, looked upon as so odious that the son was 
only entitled to maintenance, and not to inheritance (m). 
And the position of a son born to him by a concubine was 
no better (n). But the son of a Sudra by a concubine was 
always entitled to inherit under certain events. The dis- 
tinction, however, seems to have been taken that, in order 
to do so, he must have been begotten upon a woman who 
was under the absolute control of the begetter. Manu 
speaks of the son begotten by a man of the servile class 
" on his female slave, or on the female slave of his male 
slave ** (o). And so Narada says : " there is no issue if a 
man has had intercourse with a woman in the house of 
another man ; and it is termed fornication by the learned 
if a woman has intercourse with a man in the house of 
a stranger *' (p) obviously, because in the latter case the 
woman is not under his dominion. Her issue would 
belong to the person who was her owner. 

Soa of an § 76. The casc of the son of the appointed daughter is a 

dSagSter. little more complicated, but appears to me to be explicable 

in the same way. She was lawfully married to her hus- 
band. Yet her son became the son of her father, if he had 
no male issue ; and he became so, not only by agreement 
with her husband, but by a mere act of intention on the 

(») Narada, zii., § 56. For the definition of a ** pannarbbava," sec Vishnu, 
XV., § 7-9; Manu, ix.. % 176 ; Narada, xii., § 46-49 ; Vasiiihtha, xvii., § 13. 

{k) Katyayana, SDig., 286. 

{l) See Baudhayana, ii., 2, § 21, 22 ; Vishnu, xt., § 27, note. 

(m) Cf. Man«, 'm.,% 13—19, iz., § 146—166, 178 ; Gautama, xxviii.. § 39 ; Devala, 
3 Dig., ]36, and other authorities cited 8 Dig., 116—133 ; Tajnavalkya, ii., ( 125. 

(n) Mitakshara, i., 12, § 3. (o) Manu, ix., § 179. (p) Narada, xii., $ 61. 



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I 



PARAS. 75—77.] SONS BBIiONG TO WHOM. 91 

part of her father, without any consent asked for or 
obtained. Hence a man was warned not to marry a girl 
without brothers, lest her father should take her first son 
as his own (q). Now Vasishtha quotes a text of the Vedas 
as showing that ** the girl who has no brother comes back 
to the males oi her own family, to her father and the rest. 
Betuming she becomes their son *' (r) . In her case, there- 
fore, the father seems to have retained his dominion over 
her, to the extent of being able to appropriate her son if 
he wished it (s). The same result of course followed, where 
the marriage took place with an express agreement that 
this dominion should be reserved (t). 

A custom precisely similar to that of the son of an NAmbadriBriL> 
appointed daughter still exists among the Nambudri Brah- "*"** 
mans of the Malabar Coast in Madras. They are believed 
to have emigrated from Eastern India about 1200 or 1600 
years ago, bearing with them a system of Hindu law of an 
archaic character, more nearly representing that of the 
Sutra writers than the later form to be found in the 
Mitakshara (w). Where a Nambudri has no male issue, he 
may give his daughter in Sarvasvadhanam marriage. The 
r^ult of such a marriage is that, if a son is born, he 
inherits to, and is for all purposes the son of, his father-in- 
law. If there is no male issue, or on failure of such issue, 
the property of the wife's family does not belong to the 
husband, but reverts to the family of the father-in-law (t?), 
unless the marriage has been accompanied by a formal 
appointment of the son-in-law as heir of the lUom {w), 

§ 77. The remaining sons are all adopted sons, and Adopted sons, 
avowedly the original property of their natural parents. 
Their case will be separately treated in the next chapter. 

(q) Guntama, xzviii., $ 19,90 ; Mana, iii., § 11. (r) Vanishtha, xvii., § 12. 

(«) In Rossia, a father retains kis dominion over his daughter after marriage, 
and may claim her services at his own home if thoy are required in case of ill> 
nees, or by the death of his wife. See an article on Marriage Customs, in the 
Pall MhU Budget, xix., 249, one of a series on the Russians of to-day. 

{t) Baodhayana, ii., 2, $ 11. 

(tt? Vasadevan v. Secretary of State, II Mad., 167, 160. 

(v) 11 Biad., 158, l^lxKiimaran v. i^araj^aneft, 9 Mad., 2W\ Chemnantha 
V. PalakuMku, 25 Mad., 662, p. 664. 

(ti?) Mad. H. Ct. S. A., 247 of 18H1, cited Wigram, 16. 



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obsolete. 



MARRIAGE AND SONSHIP. [cHAP. IV, 

The only matter of remark bearing on the present enquiry 
is this : that in two of the cases, viz.^ the son given 
(dattaka) and the son bought {kntaka), the boy was a 
minor, and the right in him was given over by those who 
had dominion over him, and could be given over by no one 
else (§ 132). In the case of the son made {kritrima) the 
youth was of full age, and therefore able to dispose of 
himself ; and in the case of the son self-given (svayam- 
dattaka) or cast oflf (apaviddha) he had been abandoned, 
or ill-treated by his parents, or had lost them. Their 
dominion had accordingly come to an end {x). 
All but two now § 78. All of these sons, except the legitimate and the 
adopted, are long since obsolete {y). Possibly traces of the 
old usage may still linger on in remote districts. Jagan- 
natha says that in Orissa it is still the practice with some 
people to raise up issue on the wife of a brother, but his 
own opinion is strongly expressed against the legality of 
such a proceeding. *Mr. Colebrooke states that, in his time, 
the practice of appointing brothers to raise up male issue 
to deceased, impotent, or even absent brothers, still pre- 
vailed in Orissa. Mr. Eajkumar Sarvadhikari says in 
reference to this statement, — " From all the enquiries we 
have made on the subject, it appears that the practice is 
highly reprobated among the higher classes in Orissa, and 
if it exists among the lower classes at all, it exists in such 
a form that it is of no importance whatever from a juridi- 
cal point of view." He adds that, among some of the rich 
and noble classes in Orissa, the practice of Niyoga has pro- 
bably assumed the modernised form of marriage with an 
elder brother's widow (z). The same reason which 
caused the Kshetraja son to fall into disrepute, neces- 

ix) Baudhayana, ii., 3, i 13, 14, 16, 19, 21 ; Vaaishthft, xvii., §17— 20; Vishnu 
XV., § 18 -26 ; Manu, ix.. § 168, 169, 174, 177 ; post, § 106. SimUai Iv in Rome 
there were two sorts of adoption ; adoptio, properly bo called of a child who was 
under the dominiou of another, and adrogation of a person who was sui juris. 

iy) Vrihaspati, 3 Dig., 271 ; Aditya Purana, ib,, 272, 288; Apararka, cited, 
Sanradhikan, 612 ; V. May, iv., 4, §46 ; Dattaka Mimamsa, i., § 64 ; Smriti Chan- 
drika, x., § 6 ; D. Ch., i., 9 ; 2 Bor., 466 ; post, § 106. The mention of them in 
works 80 late as the Daya Bhaga cannot be taken as any evidence that they 
were still recognized at that time. See ante, $ 16. Sarvadhikari, 619. 

{z) 3 Dig., 288, 289, 276, note ; Sarvadhiknri, 628. 



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PARA. 78.] ALL CLASSES BUT TWO OP SONS OBSOLETE. 

sarily led to the disappearance of several of the others also. 
The increasing strictness of the marriage tie made a 
husband refuse to recognize as his son any issue which 
was not begotten upon his own wife by himself, or, at all 
events, might not be supposed to have been so begotten. 
This would eliminate from the list of sons the Kcmina, the 
Gvdhajaj and the Sahodha, unless, in the latter case, the 
son conceived before marriage was born after marriage (a). 
When a second marriage came to be forbidden (§ 93), 
the Paunarbhava would follow the same fate (5). The 
practice of appointing a daughter would also fall into 
disuse since, so long as it lasted, there would be a difficulty 
in finding a husband for a girl who had no brothers. It 
was probably at this period that the son of a daughter not 
appointed came to take the high rank which he at present 
occupies in the list of heirs (c). Among the Nambudris 
in Malabar, the son of the appointed daughter is still 
recognised as heir to his maternal grandfather, where the 
marriage of the daughter has taken place according to the 
form known as Sarvasvadhanam ; the formula used 
being, " I give unto thee this virgin, who has no brother, 
decked with jewels ; the son who may be born of her shall 
be my son" (d). The validity of such an appointment 
was recognised in Pondicherry on at least two occasions 
so lately as 1830 ; but in 1868 the Civil Court decided that 
the usage had become obsolete from time immemorial (e). 
In one case the Judicial Committee intimated a doubt 
whether such a son might not even now be lawfully creat- 
ed in the orthodox parts of India (/). It is improbable, 

(a) See Collector of Trichinopoly v. Lekkamani, 1 1. A., 283, 298 ; S. C, 14 
B. L. R., 116 ; S. C, 21 Suth.. 368. 

(5) The Sadder Court of Bengal, however, admitted that, by local usage, such 
% Bon might inherit. In the particulnr instance, that of the Nagur Brahmans of 
Benares, the Cnstom was negatived, Mohun Singh v. Ohuman i2af, 1 S. D. A., 
88(37). 

(e) S^epoat, § 619. 

(d) Kumaran v. Narayant 9 Mad., 260 ; Vasudevan v. Secretary of State 1 11 
Had., 167 ; Travancore Census, 1691, p. 687; Ohemnautha v. FalakuMhu^ 26 
liad.,662. 

(e) Sosg H. L., 109 ; Co. Con., 66, 62, 69. 
n ThaJfur Jeebnath Simgh v Court of Wardi, 2 I. A., 163 ; 23 Suth., P. C, 
F; 8. C, 15 B. L. R.. 190. 



Ji 



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^4 MARRIAGE AND 80N8HIP. [CHAP. IV, 

however, that this doubt will be found to have any sub- 
stantial foundation. The cessation of marriage between 
persons of different classes (§ 88) would similarly put an 
end to the Nishada, The five sorts of adopted sons would 
alone remain. These are reserved for future discussion 
(§ 104). 

Bight forms of § 79. The above statements will show that, in the 
marmge. ^j^^ ^^ early Hindu law, sonship was not by any means 

founded on marriage. A consideration of the marriage 
law itself will show that, in ancient times, it meant some- 
thing very different from what it does at present. Eight 
forms of marriage are described by Manu, and in less 
detail by Narada and Yajnavalkya (g). " The ceremony 
of Brahma, of the Devas, of the Eishis, of the Prajapatis, 
of the Asuras, of the Gandharvas, and of the Bakshasas ; 
the eighth, and basest, is that of the Pisachas. The gift 
of a daughter, clothed only with a single robe, to a man 
learned in the Veda, whom her father voluntarily invites, 
and respectfully receives, is the nuptial rite called Brahma. 
The rite which sages call Daiva is the gift of a daughter, 
whom her father has decked in gay attire, when the 
sacrifice is already begun, to the officiating priest, who 
performs that act of religion. When the father gives his 
daughter away, having received from the bridegroom one 
pair of kine, or two pairs, for uses prescribed by law, that 
marriage is termed Arsha. The nuptial rite called Praja- 
patya is when the father gives away his daughter with 
due honour, saying distinctly, ' May both of you perform 
together your civil and religious duties.* When the bride- 
groom, having given as much wealth as he can afford to 
the father and paternal kinsmen, and to the damsel her- 
self, takes her voluntarily as his bride, that marriage is 
named Asura. The reciprocal connection of a youth and 
a damsel with mutual desire is the marriage denominated 



ig) Manu, iii., §20—42 ; Narada, xii., 89—46 ; Yajnavalkya, i., § 6b -61 ; Apa- 
stamba, ii., 11 and 12, and VaeiBhtha, i., 28 — 86, omit the Prajapatya and Pisaoha 
forme. 



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PARAS. 79 & 80.] EARLY LAW OP MARRIAGE. 95 

Gandharva, contracted for the purpose of amorous em- 
braces, and proceeding from sensual inclination. The 
seizure of a maiden by force from her house, while she 
weeps and calls for assistance, after her kinsmen and 
friends have been slain in battle or wounded, and their 
houses broken open, is the marriage styled Bakshasa. 
When the lover secretly embraces the damsel, either 
sleeping or flushed with strong liquor, or disordered in 
her intellect, that sinful marriage, called Pisacha, is the 
eighth and the basest.'' 

§ 80. It is obvious that these forms are founded upon Diflferent stages 
diflferent views of the marriage relation, that they belong by: 
to different stages of society, and that their relative 
antiquity is exactly in the inverse ratio to the order in 
which they are mentioned. The last three point to a time 
when the rights of parents over their daughters were un- 
known or disregarded, and when men procured for them- 
selves women (they can hardly yet be called wives) by 
force, fraud or enticement. But even these three show 
variations of barbarism. The Pisacha form is more like ThePisach*; 
the sudden lust of the ourang-outang than anything 
human. The first dawning of the conjugal idea carmot 
have arisen, when the name of marriage could be given 
to a connection, which it would be an exaggeration to 
describe as temporary. The Bakshasa form is simply the The Rakshasa ; 
marriage by capture, the existence of which, coupled with 
the practice of exogamy, Mr. McLennan has tracked out 
in the most remote ages and regions. It is at the present 
day practised among the Meenas, a robber tribe of Central 
India, and among the Gonds of Berar, not as a symbol but 
a matter of real earnest — as real as any other form of 
robbery (A). The coimection between the Bakshasa and 
the Gandharva forms is evidenced by the fact that both The Gandharva 
were considered lawful for the warrior tribe (i). The ^°"^* 

(h) Lyall, Asiatic Studies, 168. V. N. Mandlik, 441. ^s to sanrivals of this 
practice in the Panjab, see Punjab Castomary Law, ii., 91, and in Assam, Census 
of 1891 ; Assam Report I, 118. 

(») Manu, Jii., § 26. 



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96 MARRIAGE AND SONSHIP. [CHAP. IV, 

latter is an advance beyond the former in this respect, that 
it assumes a state of society in which a friendly, though 
perhaps stealthy, intercourse was possible between man 
and woman before their union, and in which the incli- 
nations of the female were consulted. Both forms admit- 
ted of a permanent connection, though there is certainly 
nothing in the definition to show that permanence was a 
necessary element in either transaction. The remaining 
forms of marriage all agree in this, that the dominion of 
the parents over the daughter was fully recognized, and 
that the essence of the marriage consisted in a formal 
transfer of this dominion to the husband. 

The Asnrft form. § 81. The Asura form, or marriage by purchase, which 
the Sanskrit writers so much condemn (k), was probably 
the next in order of antiquity to those already mentioned. 
When it became impossible, or inconvenient, to obtain 
wives by robbery or stealth, and when it was still necessary 
to obtain them from another tribe (Z), the only other mode 
would be to obtain them by purchase. And, of course, the 
same system would survive even when marriage was per- 
mitted within the tribe, though not within the family, if an 
unmarried girl was a valuable commodity in the hands of 
her own family, either as a servant, while she remained 
unmarried, or as a possible wife, where the balance of the 
sexes rendered it difficult to obtain wives. As delicacy 
increased in the relation between the sexes, marriage by 
sale would fall into disrepute from its resemblance to pros- 
titution (m). Hence Manu says: "Let no father, who 
knows the law, receive a gratuity, however small, for giving 
his daughter in marriage, since the man who, through 
avarice, takes a gratuity for that purpose is a seller of his 

ThtApshaform. offspring " (n). The Arsha form, which is one of the 

(k) Mmiu, iii., | 41. 

It) Sen aa to this necessity, post § b6. 

im) See Tealon, 12. Tuaeo more tute tibi dotem qucsru eorpore. ** Among 
the Tiyars of North Malabar, a sum of money is paid during the marriage 
ceremony to the bride's ktfmavan, called the bride's kanom. This shows that 
the bride was once treated as mortgaged for use until the kanom was repaid." 
Mai. Mar Rep.. 52. 

(n) Manu, lii., { 6 ; iz., $ 98, 100. 



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PABA. 81.] FORMS OF MARRIAGE. 97 

approved forms, appears to be simply a §urvival from the 
Asura, the sabstantial price paid for the girl having 
dwindled down to a gift of slight, or nominal, value (o). 
Another mode of preserving the symbol of sale, while 
rejecting the reality, appears to have been the receipt of a 
gift of real valae, such as a chariot and a hundred cows, 
which was immediately returned to the giver, much in 
the same way as our Indian officials touch a valuable 
nuzzur, which is at once removed by the servants of the 
donor. This arrangement is said by Apastamba to have 
been prescribed by the Vedas '* in order to fulfil the law,** 
— that is, apparently, the ancient law, by which the bind- 
ing form of marriage was a sale (p). The ultimate Ongin of dowry, 
compromise, however, appears to have been that the 
present given by the suitor was received by the parents 
for the benefit of the bride, and became her dowry. Manu 
says : " When money or goods are given to damsels, whose 
kinsmen receive them not for their own use, it is no sale ; 
it is merely a token of courtesy and affection to the 
brides " (q). This gift, which was called her fee ({-ulka), 
passed in a peculiar course of devolution to the woman's 
own brothers ; that is, back again into her original family, 
instead of to her own female heirs. One rendering of the 
text of Gautama which regulates this succession, even 
allowed the fee to go to her brothers during her life. In 
either view, it was evidently considered to be something 
over which her family had special rights. If they aban- 
doned the possession, they retained the reversion (r). 
This was probably the reason that where a girl, who had 
been allowed to pass maturity, exercised her right of 
choosing a husband for herself, the bridegroom was not to 
give a nuptial present to her father, ** since he had lost his 
dominion over her, by detaining her at a time when she 

(o. Manu, iii., § '29 ; Yajnavalkya, i., § 59. 

(p) ApsaUunba, ii., yi., 13, § 12. See Mayr, 155, who compares the Roman 
*• (>>eniptio," and the German " Fraakaaf." ^ 

(q) Slaua. ill., $ 54 ; Mayr, 157. See a case held to be of this sort in Bombay. 
In the goods of Nathibaij '2 B'>m., 9 Mr. McOahan mentions an exactly similar 
osAge as prevailing among the Kirghiz, Campaigning on the Oxus, 60. 

(r) Mayr, 170. 

7 



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98 



MARRIAGE AND SONSHIP. 



[chap. I\% 



might have beei>a parent.'* But, on the other hand, as 
the reversion w^as thus lost, she was not allowed to carry 
with her the ornaments she had received from her own 
family (5). If the girl died before marriage, the gifts made 
by the bridegroom reverted to him, after deducting any 
expenses that might have been already incurred (t). 
Essence of re- § 82. The essential difference between the three remain- 
abaenof of^equr iDg fomis, VIZ., the Brahma, Daiva and Prajapatya, and 
^ ®°** those just described, is this : that while, on the one hand,, 

the girl is voluntarily handed over by her parents, they, on 
the other hand, receive no equivalent. The Daiva form is 
expressly stated to be appropriate to an officiating priest, 
that is, a Brahman. Manu describes the bridegroom in 
Brahma form, the Brahma form as *' a man learned in the Vedas," there- 
fore presumably a Brahman also. It is probable that these 
forms first arose in the case of Brahmans. When mixed 
marriages were allowed, the great reverence shown to the 
Brahman would naturally have led to his being accepted 
upon his own merits, without any payment. In time, the 
same practice would be adopted, even when he was marry- 
ing a girl of his own caste. When these forms came to 
be universally adopted by the Brahmans, they would be 
followed by the inferior classes also as a mark of respecta- 
bility : just as a marriage in St. George's, Hanover Square, 
is specially prized by persons who do not happen to have 
houses in that fashionable district. Primn facie one would 
imagine that a Brahma marriage, from its very definition^ 
was inadmissible for a Sudra ; and Manu certainly seems 
to contemplate only the last four as applicable to the case of 
the three lower classes (u). But there is no doubt that the 
Brahma marriage has long since ceased to be the property 
of any class ; and the Madras Sudder Court have held 
that, in the case of Sudras, the mere fact that the bride is 
given without the bestowal of any gift by the bridegroom 
constitutes the marriage one of the Brahma form {v). 

(s) Manu, ix.. S 90—93 ; Gaut., xviii , § 20. 

(t) Yajnavrtlkya, ii., U 146 ; Mitakshara, ii., 11, § 30. 

(m) Manu, iii., 55 22—26. (r) Sivarama v. Bagavan, Madras Dec. of4869, 44. 



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PARAS. 82&83.] BRAHMA AND ASURA FORMS SURVIVE. 99 

§ 83. Of these vanous forms of marriage all but two, the Brahma and 
Brahma and the Asura, are now obsolete. Manu treats the aun^e* **"* 
first four as the approved forms, and the latter four as 
disapproved. He permits the Gandharva and the Eakshasa 
to a military man. Narada forbids the Eakshasa in all cases. 
Both absolutely forbid the Asura and the Pisacha (w). 
The existence of the disapproved forms, or some of them, 
at a period much later than Narada, is evidenced by the 
rules which provide a peculiar descent for the stridhana of 
a woman so married (x). It is stated generally that the 
Brahma is the only legal form at present, and probably this 
may be so among the higher classes, to whom the assertion 
is limited by Mr. Steele (y). But there is no doubt that the 
Asura is still practised ; and in Southern India, among the 
Sudras, it is a very common, if not the prevailing, form (z)- 
In Assam, " as a rule, women are looked on as a species of 
property to be bought with a price, or by service in the 
father's house.'' The Gharos and Khasis alone do not pur- 
chase their wives (a). Even in Madras, however, and Presumption as 
among Sudras, it has been held that the presumption will °""' 
be against the assertion that a marriage is in a disapproved 
form, and that it must be proved by those who rely on it 
for any purpose. The same point has been decided by the 
High Court in Calcutta, as regards Bengal, and seems to 
have been assumed by the Judicial Committee in a case 



(w) Mann, iii., § 23, 24, 36—41 ; Narada, xii., § 46. 

(ae) Mitakshara, ii., 11, § 11. 

(y) Gibelin, i., 63 ; Colebrooke, Essays, 142 (ed. of 1858) ; Steele, 159 ; V. N. 
Mandlik, 301. 

(z) 3 Dig., 605 ; 1 Stra. H. L., 43 ; Mayr, 155. I have often heard the same 
statement made, arguendo, in the Madras Courts by the late Mr. J. W. Branson, 
a Barrister of preat local and professional experience, and thoroughly versed in 
the languages and customs of Southern India. The statement seemed to be 
accepted by the Bar and the Bench. Jagannatha quotes a text from Yajna- 
Yalkya, stating that the Asura ceremony is peculiar to the mercantile and ser- 
Tile clasftes, which is not to be found in Stenzler's edition. It ought to come 
m after i., § 61. See 3 Dig., G04; In the goods ofNathihai, 2 Bom., 9. Even be- 
tween Brahmans such a marriage has been held valid in Madras. Viftvanathan 
y. Saminathan, 13 Mad., 83. Where under the form of an Asura marriage the 
parentg contracted for a maintenance to be paid to themselves in consideration 
of giving their daughter to an ineligible suitor, the Allahabad High Court held that 
the agreement for maintenance was contrary to public policy and could not be 
enforced. It was not contended, however, that the marriage itself was invalid. 
JBaldeo Sahar v. Jumna Kunwar, 23 All., 495. 

(a) Census of 1891 ; Assam Report, 1, 117, 118. 



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100 " MABRIAGE AND SONSHIP. [cHAP. IV, 

from Tirhoot (6). In a case in Western India, the Shastras 
stated that, although Asura marriages were forbidden, it 
had nevertheless been the custom of the world for Brah- 
mans and others to celebrate such marriages, and that no 
one had ever been expelled from caste for such an act (c). 
M. Sorg states that among the Tamil population the Asura 
form of marriage is universal, and that the Brahma form, 
which is known as Cannigadanam^ or gift of a virgin, is not 
thought reputable, and that the son-in-law so married is 
considered to become adopted into the family of his father- 
in-law, and loses his right of succession in his natmral 
family {d). In fact a marriage, in whiclj the bridegroom 
gets his bride for nothing, is looked upon as a purchase of 
Gftndharvaform, the bridegroom. The validity of a Gandharva marriage 
between Kshatriyas appears to have been declared by the 
Bengal Sudder Court in 1817, and to have been assumed 
both by the District and Sudder Court so late as 1850 and 
1853 (e). It seems to me, however, that this form belongs 
to a time when the notion of marriage involved no idea 
of permanence or exclusiveness. Its definition implies 
nothing more than fornication. It is difficult to see 
how such a connection could be treated at present as 
constituting a marriage, with the incidents and results of 
such a union. This view was unhesitatingly laid down by 
the Allahabad High Court in a case between Kajputs, 
when the offspring of such a marriage claimed as, but was 
held not to be, legitimate (/). The Madras High Court 
considers that a Gandharva marriage would be legal, if 
celebrated with nuptial rites, of which the homam cere- 
mony, or sacrifice by fire is an essential part (g). It is obvi- 
ous that such a ceremonial proceeding is something very 

(6) KaUhi v. KuUadati, Madras Dec. of 1860, 20l ; Judoonath v. Bua$wU 
Coomar, 11 B. L. R., 286, 288, S. C, 19 Sath.,264 ; Jagannath Prasad y, Banjit 
Singh, 26 Cal., 3M ; Mt, Thakoor v. Bai Baluk Bam, 11 M. I. A., 176, S. C. 10 
Suth. (P. C), ». 

(e) Keahow Bao v. NarOf 2 Dor., 198 [215, 221] , and ece Nundlal v. Tapeedat. 
1 Bor., 18 [16, 20] . [d] Sorg H. L., 30—38. 

(c) Bujmu Ckul V. Banee Bhadoorun, cited S. D. of 1846, 840 ; S. C, 7 
B. S. D., 365, 8 Dig., 606 ; Jogendro Deb v. Funendro Deb, 14 M. I. A., 376. 

(/) Bhaoni v. Maharaj Singh, 3 All., 738. 

(g) Brindavana v. Badhamani, 12 Mad., 72, per curiam, 13 M. I. A., 606. 



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PABA. 84.] POWER TO DISPOSE OP BRIDE. 101 

different from the unconventional arrangement described 
by Manu. No doubt the texts referred to in the Judgment 
of the High Court result from the attempt of later writers 
to reconcile a respect for ancient usages with the greater 
formality of modem society. 

§ 84. As regards the persons who are authorised to Power to dispose 
dispose of a girl, Narada says : ** A father shall give his ° ^ ' 
daughter in marriage himself, or a brother with the father's 
consent, or a grandfather, maternal uncle, kinsmen, or 
relatives. In default of all these, the mother, if she is 
qualified ; if she is not, the remoter relations should give a 
girl in marriage. If there be none of these, the girl shall 
apply to the king, and having obtained his permission to 
make her own choice, choose a husband for herself ** (A). 
Where a father had abandoned his wife and daughter, the 
mother would be capable to give away her daughter (i). 
But under no other circumstances would a marriage con- 
tract be binding without the father's consent (k). And the 
maternal grandfather has a right of disposal superior to 
that of the stepmother (Z). Where the natural guardian 
is a female, she is not necessarily invested with exclusive 
authority in the matter, as is clear from the fact that the 
mother, who ranks next to the father as natural guardian, 
ranks low in the list of relations for the purpose of dispos- 
ing of her daughter in marriage (m). But the High Court 
of Madras refused to allow a divided uncle to dispose of 
his niece in marriage without consulting her mother. 
They admitted that the text of Yajnavalkya (i., § 63) could 
not be limited to the case of a divided family, but they 
thought that the object of placing the male relations 
before the mother was merely to supply that protection 
and advice which the Hindu system considered to be neces- 

(h) Naiida7xiL7§ 30—22 ; Yajnavalkya, i., § 63. 

(t) Baee Bu/yatv, Jeychund. Belhiais, 43 ; S. C, 1 Mor.(N. S.), 181 ; Khushal- 
ekand v. Bat Manx, 11 Bom., 247. 

{k) Nundlal y. Tapeedas, 1 Bor., 14 [16] ; Nanahhai v. Janardhan^ 12 
Bom., 110; Shenkapa Setiapa v. Beva7iaj 17 Mysore, 33. 

(t) Ram Bunaee v. Soobh Koontvaree, 7 Suth., 321; S. C, 3 Wym., 219; 
B.C., 2 In. Jar., 193. 

(m) Per cur., 7 Suth., 323. 



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102 MARRIAGE AND SONSHIP. [cHAP. IV, 

sary on account of the dependent condition of women. 
That dependence had now practically ceased to be enforced 
by the law. Where the mother was at once the guardian of 
the girl, and the legal possessor of the estate out of which 
the marriage expenses must be defrayed, they considered 
that she was entitled to be consulted on the one hand, and 
the male relations on the other, but that the Court would 
probably interfere to compel the marriage of a girl to a 
suitable husband, if chosen by either party, and rejected 
without reasonable cause by the other (n). Where the 
guardian is about to effect a marriage which is obviously 
injurious to the girl, the Court has power to interfere, 
especially where his conduct is actuated by improper or 
interested motives. Such interference, however, would 
very rarely, and only in extreme cases, be allowed, where 
the guardian was the father (o). 

inurference of § 85. The above rules are of importance so long as the 
Court. marriage rests in contract, and an attempt to give away a 

girl in marriage by a person not authorised to do so would 
be over-ruled by the Court upon a proper application by 
the person in whom the right was reposed (p), A very 
different question arises where the marriage has actually 
been celebrated. A very strong case of that sort recently 
arose in Madras (g). There the mother had caused her 
daughter's marriage to be celebrated without her husband's 
permission. The Brahman who celebrated the marriage 
was falsely informed by her that the father's consent had 
been given. It was found as a fact that the mother acted 
bona fide in the interest of her daughter, and, as her natural 
guardian, desiring to secure her a suitable husband. The 
father repudiated the marriage. The husband sued for a 
declaration that the marriage was irrevocable. The High 
Court decided in his favour. They said : " two propositions 



(n) Nnmaaevayam v. AnnamaXf 4 Mad., H. C, 839 ; Mi. Ruliyat v. Madkowjee, 
2 Bor., 680 [739] ; Kumla Buhoo v. Muneeshunkury t6., 689 [746] . 
(o) Shridhar v. HiralcU, 12 Bom., 480. 
(p) Per curiam^ 11 Bom., 263. 
{q) Venkatacharyulu v. Rangacharyulu, 14 Mad., 816. 



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PARAS. 85 & 86.] MIXED MARRIAGES. 103 

of law may be taken to be established beyond controversy, 
viz,, (1) where there is a gift by a legal guardian, and the 
marriage rite is duly solemnised (r) the marriage is irrevo- 
cable, and (2) where the girl is abducted by fraud or force 
and married, and there is no gift either by a natural or 
legal guardian, there is a fraud upon the policy of the 
rehgious ceremony, and there is therefore no valid religious 
ceremony '' (s), " The third proposition of law, which is 
material to the case before us, is that when the mother of 
the girl, acting as her natural guardian, in view to her 
welfare, and without force or fraud, gives away the girl in 
marriage, and the marriage rite is duly solemnised, the 
marriage is not to be set aside. This view is supported by 
authority (t) and is sound in principle.** 

§ 86. The selection of persons to be married is limited Persons to b* 
by two rules : first, that they must be chosen outside the 
family : secondly, that they must be chosen inside the caste. 
The first of these rules is only a special instance of that 
singular prohibition against marriage between persons be- 
longing to the same family or tribe, which is to be found in Exogamy. 
almost every part of the world, and to which Mr. McLennan 
has given the name of Exogamy. According to the Sanskrit Forbidden 
writers, persons are forbidden to marry who are related as »®"»**®®* 
sapindas. This relationship extends to six degrees where 
the common ancestor is a male. Where the common ances- 
tor is a female there is a difiference of opinion ; Manu and 
Apastamba extending the prohibition in her case also to 
six degrees, while Gautama, Vishnu, Vasishtha, Sankha, 
Narada and Yajnavalkya limit it to four degrees. To this 
restriction some of the above writers add a further rule 
that the bride and the bridegroom must not be of the same 

(/•) Soe as to prosamption in a favour of due preformance of a marriage 
■actually celebrated. Brtndabun Ghundra v. Chundra Kurmokavt 12 Cal., 140. 

{si See per Norman, J., Aunjona Dasi v. Prahlad Chandra, 6 B. L. R., 
p. 2.S4. 

U) Citinjf BxiBuUyat v. Jeychand Bewal, Bellasis, 48 ; S. C, I Morley N. S., 
181 ; Modhoosoodhan v. Jaduo Ckander, 3 Sath., 194; Brindabun Ghundra v. 
Chundra Karmokar, 12 CaL, 140; Khushal Chand v. Bai Mani,ll Born., 247; , 
Ohazi V. Sakru, 19 AIL, 615 ; Bai Diwati v. Moti Karson, 22 Bom., 609 ; Mul- 
chand Kuber v. Bhudea, ibid., b]2. 



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IW MARRIAGE AND SONSHIP. [CHAP. IV^ 

gotra or pravara. That is, that they must not be of the 
same family, nor invoke the same ancestor (w) . In comiting- 
according to the above rules the person under consideration 
is to be excluded. ^That is to say, begin from the bride or 
bridegroom, and count, exculsive of both, six or four 
degrees upwards according as their relationship with the 
common ancestor is through the father or the mother res- 
pectively, and if the common ancestor is not reached within 
those degrees on both sides, they are not sapindas, and 
marriage between them can be solemnised (v). In this 
way 2,121 possible relations are rendered ineligible for 
marriage ; while further complications, rendered more com- 
plex by differences of opinion among the commentators,, 
arise in the case of an adopted son, who is excluded from 
marriage in two families, or where relationship is traced 
through stepmothers (w). Where the relationship arises 
from mere affinity, as distinguished from consanguinity, a. 
marriage may be improper, but is not forbidden, in the sense 
of being invalid. For instance, a man may marry the 
daughter of his wife's sister ; or his wife's sister, niece or 
aunt ; or the sister or niece of his stepmother ; or a paternal 
uncle's wife's sister, or niece (x). On the other hand, the 
strictness of these rules is relaxed as regards Western and 
Southern India by writers who recognise the validity of 
district or family custom permitting intermarriages within 
the forbidden degrees. They expressly refer to marriages 
between first cousins, such as that of a man with the 
daughter of his mother's brother or of his father's sister (y) . 
Usage, unsupported by direct authority, permits the union 

(«) Manv^ iii., 6 ; Apastamba, ii., v., 11, § 16, 16 ; Oautamay iv., § 2—6 ; Vuhnu, 
xxiv., * 9, 10 ; Narada, xii., § 7. Fo/m., i., § 52, 63 ; V. N. Mandlik, 411. It is 
said that a woman married within the forbidden degrees, though she cannot be 
the wife of the )>ridegroom for ary conjugal or religious pni-poses, yet cannot be> 
married by another, and must be maintained by her attempted hunoand. V. N. 
Mandlik, 608. See as to the prohibited degrees in the Punjab Customanr 
Law, II, 120, 174. 

(V) V. N. Mandlik, 347 ; Mitaksliara, cited W. & B., 121. Tlie nppareni 
variance in the authorities quoted above arises from some counting exclusively^ 
and others inclusively. 

(w) See V. N. Mandlik, 352. 

far) Ragavendra Han v. Jayaram Bau, 20 Mad., 283. 

(y) See the authorities cited by Mr. V. N. Mandlik, 408, 413, 416—424, 448. 



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PABA. 87.] MIXED MARRIAGES. 106 

of a man with his own sister's daughter (z). Marriage 
with a niece has, however, been held by the Bombay 
High Court to be incestuous, and the Madras High Court, 
while admitting that the rules among Sudras were not as 
strict as among Brahmans, and that instances existed of 
a man marrying his brother's daughter, intimated that 
such a practice was not warranted by usage (a). 

§ 87. The restrictive Sanskrit texts, which have been Limited appUoa- 
referred to above, only apply to the twice-born classes. 
Even amongst these it is stated by Mr. V. N. Mandlik, 
that the Kshatriyas and Vaisyas have neither gotra nor 
pravara, and that thousands of Brahmans, in different 
parts of the country, are in the same position. As regards 
Sudras, the restraint upon intermarriage must arise from 
usage, or from voluntary adoption of the Sanskrit rules, 
not from any inherent efficacy of the rules themselves (b). 
But exactly the same rule against intermarriages between 
members of the same family has been observed among the 
Kurumbas of the Nilgiris, the Meenas of Central India, 
the Kandhs of Orissa, and among the Dravidian races of 
Southern India (c). Most of the Canarese castes are 
divided into sects, called balis, and members of the same 
ball cannot intermarry (d). In Madura, the women of 
the Chakkili tribe belong to the right-hand faction, and 
the men to the left-hand (e). Evidently a relic of the 
time when men had to marry women of a different tribe. 
So the chiefs of the Maravers are accustomed to marry 
Ahambadyan women, and of the children born of such 
marriages, the males must marry Ahambadyans, and the 
females must marry Maravers (/). Exactly the opposite 
rule of Endogamy is found to exist among other tribes in Endogamy, 
the same district. For instance, among the Kalians, the 
most proper marriage for a man is with his first cousin, that 

(z) v. N. Mandlik. 

(a) Bamantfavdu v. Shivaji^ cited V. N. Mandlik. 438; Vythilinqa v. Vijia- 
tl^mmah 6 Mad.. 43. • ih) V. N. Mandlik, 412, 431. 

{c) Breeks. 51 ; Lyall, Fort. Rev., Jan. 1877, 106; Hnnter, Orissa, ii.. bl. 
(d) 8. Can. Man., I, 148, 160. (e) Mad. Manual, Pt. II, 7. 

(/) Mnd. Manual. Pt. II, 42. 



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106 MARRIAGE AND SONSHIP. [cHAP. IV, 

is, the daughter of his father's sisters or brother, and failing 
her, with his own aunt or niece. Among the Maravers, also, 
marriage is permitted between the children of brothers {g). 
The Konga caste in Southern India look upon a marriage 
with a maternal uncle's daughter as so desirable that 
a mere child is often married to such a girl who is twice 
his age (A). Among some of the Tamil castes, the child- 
ren of a brother can intermarry with those of his sister, 
but neither the children of two brothers, nor those of 
two sisters can intermarry, the relationship in such cases 
being considered nearer, by some obscure process of 
reasoning (i). Among the Pullavans, or medicine men, of 
Malabar, brothers and sisters are said to marry (i). In 
many of the Dravidian castes it is said that the father will 
marry the son's widow (I) . In ancient times, the incestuous 
marriages of the Sakya princes with their own sisters, and 
the similar intercourse ol the Gandhara Brahmans with 
their own sisters and daughters-in-law (m), present an 
illustration of the same curious conflict of principle. 

Mixed marriages § 88. The prohibition against marriages between persons 
t^^ y permi - ^^ (jif^^i^ent castes is comparatively modern. Originally, 
marriages between men of one class and women of a lower, 
even of the Sudra class, were recognized (/i), and must have 
tended strongly to produce that amalgamation of the 
customs of the Aryans and the aborigines, which I have 
already suggested as probable (o). The sons of such 
unequal unions were said to rank and to inherit, not 
equally, but in proportions regulated according to the class 
of their mother {p). Even this rule, however, appears to 
have been an innovation. Baudhayana lays it down 

ig) Mad. Manual, Pt. II, 40, 60. (h) Ceueua 1691, xiii., 283. 

(*) Sorg Int., 10. {k) (Census 1891. xiii., 272. (I) Man. Adm. Madras, 106. 

im) Wheeler Hist. Ind., iii., 102; Muir, A. S. T., ii., 483. 

(n) Apastamba stands alone among the early writers in not recognizing 
unequal marriages, ii., vi., 13, § 4, 6. It will be remembered that he does not 
recognize the subsidiary sons either. I cannot acdount for this di£Ference, uniess 
some passages have fallen out in the text. 

(o) 1 take the Sudras as representing the aborigines in early times, bat I am 
aware there is much controversy upon the point. See Muir, A. S. T., i., 140— 
159, 289-295, ii., 368, 455, 485; Lassen, Ind. Alt., i., 799. 

ip) Manu, ix., § 149-154. 



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PARAS. 88 & 89.] MODERN LAW OF MARRIAGE. 107 

generally that " in case of a competition of a son born from 
a wife of equal class, and of one born from a wife of a 
lower class, the son of the wife of lower class may take 
the share of the eldest, in case he be possessed of good 
qualities" (g). All the writers allow marriages between 
a Sudra woman and a Kshatriya or Vaisya, but there is 
much conflict as to marriages between a Brahman and a 
8udra woman. Among the Sutra writers the validity of 
such marriages seems to be undisputed, but there is much 
variance as to the position of the offspring. Some texts 
represent him as sharing with the higher sons ; others as 
only inheriting in default of them ; others as never taking 
more than a small fraction of the estate ; and others as 
never entitled to more than maintenance (r). The conflict 
in Manu is still greater, and shows that the present com- 
pilation is made up of texts of different periods. Some texts 
forbid the marriage, some permit it. Some allow the son to 
inherit, others forbid him to do so (5). But perhaps the 
strongest possible recognition of such marriages is that 
afforded by Manu himself, when he admits that the 
offspring resulting from them might in seven generations 
rise to the highest class {t). It seems, however, to have 
been always admitted that a Sudra man could not lawfully 
marry a woman of a higher class than his own (w). 

§ 89. Marriages between persons of different classes are Mixed marriages 
long since obsolete (v). No doubt from the same process** *^ 
of ideas which has split up the whole native community 
into countless castes, which neither eat, drink, nor marry 
with each other (w). It is impossible now to say when 

(q) Baadhayana, ii., 2, § 8. See Gaabama, xxviii., ^ do — t^. 

(r) Baadhayana, ii., 2, §6, 7,21 ; Gautama, xxviii., §39 ; Vasishtha, xvii.,21, 25. 

{a) Cf. Mana, iii., § 12—19, ix., § 149—156 ; Narada, xii., § 4-6 ; Yajnavalkya, 
i., $ 56. 57 ; Smriti Chandrika, ii., 2, § 8. 

(t) Mana, x., § 64; see, too, § 42. («) Manu, iii., § 13, ix., § 157. 

(v) Vrihat Naradiya Purana, 3 Dig., 141 ; D. K. S., i., 2, § 7. 

(w) DkCeiiriitges between persons in different sub-divisions of the same caste, 
e.g., of BraJimans or Sudras, have been said to be invalid, unless sanctioned by 
local coBtora. Melaram v,. Thanooramt 9 Suth., 652 ; Narain Dhara v. Rakhal, 
1 Cal., 1 ; S. C, 23 Sath., 334. Contra, Pandaiya Talaverv. Puli Talaver, 
1 Mad. H C, 478; a/a., 13 M. I. A., 141; S. C, 4 Mad. Jur., 328; S. C, 
8 B. K R. (P. C), 1 ; S. C, 12 Suth. (P. C), 41; Ramamani v. Kulanihai, 14 
M. I. A., 846, 352: XJpoma Kuchainv. Bholaram Dhubi, 15 Cal., 708; Fakir 
Oauda r. Oangi, 22 Bom.. 277. 



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108 MARRIAGE AND SONSHIP. [cHAP. IV, 

mixed marriages first became extinct. The Mitakshara 
follows Yajnavalkya in recognizing such marriages, though 
the phrase, " under the sanction of the law instances do 
occur,** seems to show that they were dying out (x). They 
are also mentioned without disapproval by the Daya 
Bhaga, Smriti Chandrika, Sarasvati Vilasa, Viramitrodaya, 
Madhaviya, and Varadrajah (y). But in the case of the 
later authors, at all events, it is probable the discussion 
was merely introduced to give completeness to the subject,, 
and not because such a practice really subsisted. Illegiti- 
macy is of itself no disqualification for marriage. Where 
one or both parties to a marriage are illegitimate, it will 
be valid if they are in fact recognised by their caste men 
as belonging to the same caste (z). 

^**yjj°*^ ^' i § 90- A.S the great and primary object of marriage is the 
procuring of male issue, physical capacity is an essential 
requisite, so long as mere selection of a bridegroom is 
concerned; but a marriage with a eunuch is not an 
absolute nullity as with us (a). Mental incapacity stands 
in the same position. While the matter rested in contract, 
no Court, I imagine, would treat a promise to marry a 
lunatic or an idiot as binding; but the marriage, if 
celebrated, would be valid. The lunatic, or idiot, would 
be incapable of inheriting ; but his issue would receive 
their shares (6). A Hindu marriage is the performance 
\ of a rehgious duty (c), not a contract; therefore the 
I consenting mind is not necessary, and its absence, whether 
from infancy or incapacity, is immaterial (d). 

A curious custom exists among the Ayodhya (Oudh) 
Reddis of Tinnevelly and Madura, the Kammas, a widely 



Ix) Mitakshara, i., 8, ^ 2. 

(y) Daya Bhapa, ix.; Smriti Chandrika, ii., 2, § 6—9; Viramit., p. 101, § 2; 
Madhaviya, § 24 ; Varadrajah, 18 ; Sarasvati Vilasa, § 163—167, 

(£) In re Ram Kumari, 18 Cal., 264. 

(a) Cf. Narada, xii., § 8—19 ; Manu, ix., § 79, 203 ; Jolly, Lect. 280. See as 
to withdrawal from contract, post § 111; Kanahi v. Bid4ya, 1 All., 549. 

(6) See Gautama, xxviii., § 44: Narada, xiii., § 22; Manu, ix., §201—208; 
W. & B., 906 ; Dahychum v Badachum, 2 M. Dig., 99. 

(c) Manu, ii., 5 66, 67, vi., 5 86, 37. See, however, v., § 159. 

\d) Supra, 2 M. Dig., 99, W. «fe B., 903, per curiam, 6 All., 518. 



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PARAS. 90 & 91.] MODERN LAW OP MARRIAGE. 109 

prevalent caste in the Madras Presidency, and the Bavan- 
dans, a small caste of Canarese farmers. Among these it 
is a common thing that an adult girl is married to a mere 
child. Till he grows up the wife may associate with any 
member of her husband's family or caste, and if children 
result they are recognised as the husband's lawful off- 
spring (e). 

§ 91. All the early writers inculcate the giving of a infant marritge. 
girl in marriage before she attains puberty ; the father 
who fails to do so incurs the guilt of slaying an embryo 
after the evidences of maturity have appeared. According 
to Gautama, a marriageable maiden who has not been 
given in marriage may take the matter into her own hands 
after three months have passed, and select a husband for 
herself. Manu, Baudhayana and Vasishtha require her to 
wait three years. If, however, she chooses for herself, she 
is not to take with her any ornaments given by her father 
or her mother or brothers (/). In Southern India this 
practice of infant marriage is recognised among the Brah- 
mans and the higher and middle classes ; in fact among those 
who, by origin or imitation, claim to be considered orthodox 
Hindus. Early marriage, and its concomitant enforced 
widowhood, are most common among the Telugu people 
and least prevalent among the Malayalam and Tamil castes. 
In the lower castes it is neither required nor usual (g). 
In the Punjab child marriages are little known except in 
the Eastern districts. Elsewhere the marriage ceremony 
between infants is merely an inviolable betrothal, followed 
by a further ceremony named Muklawa at puberty (h). 
In the N.-W. Provinces it is an occasional custom of 
some castes to betroth children before they are born, 
subject to the condition of turning out of opposite sexes (i). 

(«) Census 1891, xiii., 286, 288, 289. 

if) Ganfe., XTiii., §§ 20—23 ; Vasishtha, xvii., §§ 67—71 ; Baudh., iv., 1, §§ 11— 
14 ; Man., ix., 5 4, §§ 88—91 ; Vrihaspati, 2 Dig., 386 ; Paithinasi, t6., 387. 

ig) Censns Report, 1891, xiii., 128, 151 ; S. Can. Man., 1. 143, 151, 160, 166, 167 ; 
Mai. Mar. Rep., 67 ; Cochin Census Rep., Ib^l, §§ 180,181; Census of 1891. 
General Report, 264, see post § 94. 

{h) Census of 1891, Punjab Report, xix., 221, 225. 

(i) Census of 1891 , N.-W. Provinces Report, XVI, 246. 



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110 MAKKIAGE AND SONSHIP. [cHAP. IV, 

In Assam child marriage is not permitted, except possibly 
among some of the higher castes. ** Sometimes a father 
bespeaks for his son the daughter of another man as soon 
as she is born, and the two are looked upon as married ; 
But the arrangement is nothing more than a betrothal. 
Cohabitation is not permitted before maturity, and the 
actual partners can, if they so desire, refuse to carry 
out the arrangements entered into by their parents" (k). 
As regards the Bengal Provinces, the marriage of infant 
girls **is found to an appreciable extent" only in the 
western half of the Province, that is, in Behar and Western 
Bengal ; the practice may be said not to exist among the 
non-Hinduized Dravidian tribes (Z). In Burmah, juvenile 
marriage does not exist (m). 
Polygamy. § 92. The cfficacv of the marriage tie, as binding either 

party to the transaction, is a matter upon which there has 
been a considerable change in the Hindu law, while its 
earlier stage was evidently in accordance with usages which 
we find at present existing among the non-Aryan races. 
Among the Kandhs, " so long as a woman remains true to 
her husband, he cannot contract a second marriage, or 
even keep a concubine, without her permission" (n). The 
same rule prevails among the caste of musicians in Ahme- 
dabad, and in the Vadanagara Nagar caste (o), and seems, 
from the evidence of the Thesawaleme,to have been in force 
among the Tamil emigrants into Ceylon (p). The Pondi- 
j cherry Com*ts, upon the advice of their Consultative Com- 
mittee, have decided so lately as 1893, that the husband 
cannot without the consent of the first wife take a second, 
unless the first is suffering from some incurable disease, or 
has failed to produce male offspring. A wife who is 
barren may be replaced after eight years ; one whose 
children are dead after ten years, and one who has only 

{k) Census of 1891, Assam Report, I, 113, 11«. 

(Z) Census of 1891, Bengal Keport, HI, 1B5. 

(w) Census of 1891, General Report, 269. 

in) Hnnter'fl Orissa, II, 84. 

(o) Muhashunkur v. Mt. Oottnm, 2 Bor., 524 [572]; V. N. Mandlik, 406. 

{p) Thesawaleme, i., § 11. 



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PARA. 92.] MODERN LAW OF MARRIAGE. Ill 

given birth to females after eleven years. A second 
marriage, contracted otherwise than under the above 
conditions, may be annulled at the instance of the first 
wife, and when annulled neither the second wife, nor her 
children, can inherit (q). These decisions appear to have 
been given on the authority of Manu and other native ^ 
writers, as well as upon actual usage. They accord with 
the observation of the Abbe Dubois ; he says that polygamy 
was tolerated among persons of high rank ; though even 
among them it was looked upon as an infraction of law 
and custom, in fact an abuse (r). One text of Manu 
seems to indicate that there was a time when a second 
marriage was only allowed to a man after the death of his 
former wife (s). Another set of texts lays down special 
grounds which justify a husband in taking a second wife, 
and except for such causes it appears she could not be 
superseded without her consent (t). Other passages 
provide for a plurality of wives, even of different classes, 
without any restriction (u). A pecuHar sanctity, however, 
seems to have been attributed to the first marriage, as 
being that which was contracted from a sense of duty, 
and not merely for personal gratification. The first 
married wife had precedence over the others, and her first- 
bom son over his half-brothers (v). It is probable that 
originally the secondary wives were considered as merely 
a superior class of concubines, like the handmaids of the 
Jewish patriarchs. It is now quite settled in the Courts 
of British India that a Hindu is absolutely without restric- 
tion as to the number of his wives, and may marry ^ 
again without his wife's consent, or any justification. 



(q) Sorg H. L., 51 ; Co. Con., 265, 306, 864, 371. (r) Dubois, 210. 

is) ** Having this kindled sacred fires and performed funeral rites to his wife, 
who died before him, he may again marry, and again light the nuptial fire." 
Manu, v., 5 168 ; and see ix., § 101, 102. Monogamy is one of the tenets of the 
modern Brahmo-Somaj sect. Sonaluxmi v. Viahnu Prasad, 28 Bom., 697. 

{t) Manu, ix., % 77—82, Apastamba, ii., v., ii., § 12—13. This seems still to be 
the usage among some castes of the Deccan. Steele, 30, 168, and in Bengal. 
Kally Chum v. Dukhee, 5 Cal., 692. 

(u) Manu, iii., § 12. viii., § 204, ix., § 85—87. 

(») See Manu, iii., § 12, 14, ix., § 107, 122-125. 



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112 MARRIAGE AND SONSHIP. [cHAP. IV, 

except his own wish (w). He cannot, however, divorce 
his wife, except by special local usage ; nor does conversion 
to Christianity, with its consequence of expulsion from 
» caste, operate as a dissolution of the union (x). 

Second mam- § 93, Tj^^ prohibition against second marriages of 

J. ages of women ^ .1 i.. ,. • -, , ^ , 

formerly ai. women, either after divorce or upon widowhood, has no 

^'^ ' foundation either in early Hindu law or custom. Passages 

of the Vedas quoted by Dr. Mayr sanction the remarriage 
of widows (y). And the second marriage of women w^ho 
have left their husbands for justifiable cause, or who have 
been deserted by them, or whose husbands are dead, is 
expressly sanctioned by the early writers {z). The 
authority of Manu is strongly on the other side ; but I 
think it is plain that this is one of the many instances in 
-^ which the existing text has suffered from interpolations 
and omissions. Manu declares that a man may only 
marry a virgin, and that a widow may not marry again (a). 
The only exception which he appears to allow is in the 
case of a girl whose husband has died before consumma- 
tion, who may be married again to the brother of the 
deceased bridegroom (6). On the other hand, two other 
texts appear to recognize and sanction the second marriage. 

Probable omis- either of a widow, or of a wife forsaken by her husband (c). 

tertSSan^* The contradiction appears to arise from the deliberate 
omission of part of the original text in an earlier portion 
of the same chapter. At ix., § 76, a wife, whose husband 
resides abroad, is directed to wait for him eight, six, or 
three, years according to the reason for his original absence. 
Nothing is said as to what is to happen at the end of 
the time. Kulluka Bhatta inserts a gloss : — " after these 

(w) Daya Bhaga, ix., § 6, note ; 1 Stra. H. L., 66 ; Steele, 16ct ; Huree Bhaee ▼. 
NuthoOf 1 Bor., 69 [66] ; ViroBvamy v. AppaavainVf 1 M%d. H. C, 376. 

(x) Administrator- (General v. AnatidacnaHj 9 Mad., 466. See Act XXi of 
1866. 

(y) Mayr, 181. It is now restored by Act XV of 1866. 

(») Naiada, xii., § 97-101 ; see, too, § 18, 19, 24, 46—49, 62; Devala, 2 Dig., 
470 ; Baudhayana, ii., § 20 ; Vasishtha, xvii., § 18 ; Katyayana, 3 Dig., 286. 

(a) Manu, viii., § 226, v., § 161—168. See, to the same effect, Apastamba, ii., 

vi., 13, S4. . . 

(6) Manu, ix., § 69, 70 ; antCf § 73. Vasiabtha, xvii., 74, places no restnction 
on her second choice. 

(c) Manu, ix., j 176, 176. See 1 Gib., 84, 104. 



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PARAS. 93 & 94.] SECOND MARRIAGES OF WOMEN. 113 

terms have expired, she must follow him ** (d). Now if we 
look to the corresponding part of Narada, who had an 
earlier text of Manu before him (e), we find that he lays 
down that " there are five cases in which a woman may 
take another husband ; her first husband having perished, 
or died naturally or gone abroad, or if he be impotent, or 
have lost his caste.** Then follow the periods during which 
a woman is to wait for her absent husband, and the whole 
thingis madeintQ sense by the direction that, when the time 
has expired, she may betake herself to another man (/). 
Nothing is said about her following him, which after 
such an absence would probably be impossible or useless. 
If a similar passage had followed § 76 in Manu, the texts 
at § 175, 176 would be intelligible and consistent. When 
second marriages were no longer allowed, these passages 
seem to have been left out, and others of an exactly oppo- 
site character were inserted; the texts at § 175, 176 then 
became unmeaning, but they were retained to explain the 
phrase, **son of an unmarried woman,'* which had already 
appeared in the list of subsidiary sons. It is probable that 
the change of usage on this point arose from the influence 
of Brahmanical opinion, marriage coming to be looked upon 
as a sort of sacrament, the effect of which was indelible. 
A similar cause has produced that difference of opinion 
upon the legality of marriage following upon divorce which 
prevails in Protestant and Eoman Catholic countries. If 
it is asked why the law varied in exactly the opposite 
direction in regard to second marriages of men, the only 
answer I can suggest is that men have always moulded the 
law of marriage so as to be most agreeable to themselves. 

§ 94. When we examine the usages of the aboriginal p.sage of other 
races, or of those who have not come under Brahmanical 
influence, we find a system prevailing exactly like that 
described by Narada. Among the Jat population of the 

(d) This ia apparently founded on a text attributed to VaBishtha, xvii., 75 — 80, 
-which is to the name effect. 

{e) See ante § 21 ; In trod, to Narada. 

(/) Narada, rii., § 97—101. See also authorities, ante § 92, note {t). 

8 



tribes. 



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114 MABRIAGE AND SONSHIP. [CHAP. IV, 

Punjab, not only a widow, but a wife who has been de- 
serted or put away by her husband, may marry again, and 
will have all the rights of a lawful wife. The same rule 
exists among the Lingai ts of South Canara {g) . In Western 
India, the second marriage of a wife or widow (called Pat 
by the Mahrattas, and Natra in Guzerat) is allowed among 
all the lower castes. The cases in which a wife may re- 
marry are stated by Mr. Steele as being, if the husband 
prove impotent, or the parties continually quarrel ; if the 
marriage were irregularly concluded ; if by mutual consent 
the husband breaks his wife's neck-ornament, and gives 
her a chorchittee (writing of divorcement), or if he has been 
absent and unheard of for twelve years. Should he after- 
wards return, she may live with either party at her own 
option, the person deserted being reimbursed his marriage 
expenses. A widow's pat is considered more honourable 
than a wife's, but children by pat are equally legitimate 
with those by a first marriage (h). The right of a divorce 
rirgea aad di- and second marriage has been repeatedly affirmed by the 
Bombay Courts (i). So, in Southern India, including 
Cochin and Travancore, " the re-marriage of widows is not 
forbidden by either religious or caste custom to the majority 
of the population. The prohibition exists among the 
Brahmans and among castes desirous of obtaining a high 
relative position by close observance of Brahmanical 
customs, but the restriction is entirely foreign to Dravidian 
ideas " (k) . Widow marriage and divorce is common among 
many of the lower castes, such as the Vellalans of the 

{g) Punjab CaBtomary Law, II, 131, 174, 190, 192, 193; Panjab Caat., 96; 
Vtrasangappa v. Hudrapjta^ b Msid., 440. 

i/t) Steele, 26, 159, Itk) ; W. <£ B. (2ad ed.), 139 to 146, 162, 163, 167. The 
futwahs recorded at pp. 112, 114, 139, 141, were evidently given by Shastries, 
who treated sach second marriages as illegal. See, too, Huree Bhaee v. NuthoOt 
lBor.,59 1.65], note. 

(i) An to divorce, see Kaaeram v. XJmharamy 1 Bor., 3b7 [429] ; KiueeDhool' 
lubh V. Hutton Baee, ib., 410 [462] ; Muhaahunker v. Mt. Oottum, 2 Bor., 624 
[572] ; Dyaram v. Baeeumba, Bellasis, 36 ; i2 v. Karaan, 2 Bom. H. C, 124 ; 
H. V. SambhUf 1 Bom., 347 ; Government of Bombay v. Qanga, 4 Bom., 330; 
Empress v. (7mi, 6 Bom., 126. As to widow marriage, Hurkoanwur v. Button 
Baee, 1 Bor., 431 [476] ; Treekumjeev,Mt.LaroLaroo,2 Bor., 361 [397^ ; Basg 
Button V. LaLla Munnoohur, Bellasis, b6 ; Baee Sheo v. Buttonjee, Morris, Ph. I, 
103. See Percuriam Bdhx v. Oovindf 1 Bom., 114. 

(k) Censusof 1891, ziii., 128; Mysore Census of 1871, p. 71, of 1891, xxT., 226, 229. 



Second mar- 
riages 
Torce, 



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PARA. 94.] SECOND MARRIAGES AND DIVORCE. 116 

Palanis, the Maravers (except in the case of the women of i>ivoroe and 
the Sambhu Nattan division), the Kalians, the Pallans (0, '^»do^«*»^*«*» 
the tank diggers, the potters, the barbers, and the pariahs 
generally (m). So in numerous castes in North Arcot, in 
South Canara and in Cochin (n). In many such cases, 
what is called a divorce is really nothing more than an 
abandonment by one party or the other of a marriage union 
which, from the first, was merely an agreement to live to- 
gether as long as the arrangement suited both parties (o). 
Among the Malyalis of North Arcot ** a wife may, at her 
pleasure, desert her lawful husband, and live with any 
other man of the caste, but all her children are considered 
to be those of her husband alone" (p). In the better 
classes, such as the oil-mongers, the weavers, and a wander- 
ing class of minstrels, called the Bhat Rajahs, who claim 
to be Kshatriyas, divorce is found in some localities, and 
not in others (q). It is not practised at all among the 
Brahmans and Kshatriyas, or among the higher classes of 
Sndras, such as the shepherds, the Komaty caste, the writers 
or the five artisan classes, who claim equality with the Brah- 
mans and wear the thread (r). Similarly the Bengal High 
Court has recognised the validity of widow marriage among 
the Nomosudras (s). The degree in which divorce and i/ 
widow marriage prevails is probably in the direct ratio to 
the degree in which the respective castes have imitated 
Brahman habits. The Thesawaleme treats widow marriage 
as a matter of course (t), and we may fairly assume that 
it was so originally among all the Dravidian races. This 
is the view taken by the author of the Report on Madras 

U) AtaH. Hanual, Pt. II, 33, 40, 58 ; Kattama Nachiar t. Dorasinga TevaVy 
6 MAd. H. C, 329 ; Murvgayi v. ViramakaU, 1 Mad., 226. 

(m) Madras Ceusos Report, 167, 169, 164, 171 ; Sorg H. L., 60., Co Con., 373 ; 
SamkaraUngam Chetty v. Subban Ghetty^ 17 Mad., 479. 

(a) N. Arcot Man., I, 204, 227, 229, 236 ; S. Can. Man., 1, 143, 169, 161, 1«2, 
166. 169—171 ; Cochin CenBus, 1891, § 180. 

(o) Censns of 1891, XIH, 216, 216, 239, 248, 246. 257, 304 ; N. Arcot Man., I, 
245 246 260. 

(pfN.* Arcot Man., I, 213. iq) Madras Census Report, 141, 148, 156. 

(r) Ibid., 137, 140, 143, 149, 162; N. Arcot Man., I, 205 ; S. Can. Man., 1, 137, 
165, 166; Cochin Cengos, 1891, § 181 ; Travancore Census, 1891, 685; Sorg 
H T f 49 

(«) Harry Churn v. Nt^ntU Chand, 10 Cal., 188. {t) Thesawaleme, i, § 10. 



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116 MARRIAGE AND SONSHIP. [CHAP. IV^ 

in the Census of 1891. He gives a list of sixty castes, in 
none of which, as far as he had been able to ascertain, waa 
the remarriage of widows prohibited. On the other hand,, 
he says, that the Brahman marriage system, which requires, 
that every girl should be married before puberty, prohibits 
the remarriage of widows, and allows a dissolution of 
marriage only on the ground of the adultery of the wife„ 
has been adopted in its entirety by many Telugu and a 
few other castes, and there is hardly a caste or tribe in 
which its influence has not been felt to some extent. After 
an examination of statistics, he says, ** we shall probably 
not be far wrong, if we assume that the marriage of 
widows is permitted and practised by about 60 per cent, of 
the total population' ' {u) . The same rule appears to prevail 
in Upper India and from the same cause. In the North- 
West Provinces amongst Hindus remarriage is in the 
higher castes permitted only for males (y). In the Lower 
Provinces of Bengal, and in Eastern and Western Bengal^ 
widow-marriage is not practised by Brahmans, or those 
castes which aim at imitating them. In Behar the whole 
sub-castes of Baniyas adopt widow-marriage. In Western 
Bengal the Pravidian tribes, whether Hinduized or not,, 
adopt widow-marriage. In north Behar, Orissa and 
Chutia Nagpur, it is generally practised, except among the 
Brahmans, Kayasth, Bania and Kajputs. It is universal 
among the Darjeeling tribes (iv) . In Assam such marriages 
prevail among all, except a few of the higher castes, though 
it is observed that Brahmanism is tending to bring them 
into disrepute, and to lower the general opinion as to their 
solemnity and validity (x). In Burmah divorce is available 
to both classes alike, and is apparently more often initiated 
by the wife than by the husband (y). 
Betrothal. § 95. Marriage is not to be confounded with betrothal. 

(in Census of lb9l, XlII, ]48— 151, General lleport, 264. 

(r) Census of 1S91, N.-W. P. Report, XVI, 249. 

(«•) Census of 1891, Bengal Report, III, 166, 191, 194, 200, 203. 

(x) Census of 1891, Assam Rei-ort, I, 111, 114, 115, 118. Kudomee v. Jotee- 
ram, 8 Cal., 305. On the remand in that case, the finding was that the custom 
of divorce had not been established, Assam Report, 115. 

{y, Census of 1891, General Report, 269. 



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TARA. 95.] BETROTHAL REVOCATION. 117 

The one is a completed transaction ; the other is only a 

<5ontract, Manu says, " Neither ancients nor moderns 

who were good men have ever given a damsel in marriage 

after she has been promised to another man '' (z). But 

Narada and Yajnavalkya both admit the right of a father »» reTooaWe. 

to annul a betrothal to one suitor, if a better match 

presents himself ; and either party to the contract is 

allowed to withdraw from it, where certain specified defects 

are discovered (a). Narada states that a man, who with- Result of breach 

draws from his contract without proper cause, may b^ ^ ^^'^ '*** • 

compelled to marry the girl even against his will. But it 

is now settled by decision that a contract to marry will 

not be specifically enforced, and that the only remedy is 

by an action for damages (6). All expenses resulting from 

the abortive contract would be recoverable in such an 

action (c). Of course, no such claim could be maintained 

where the contract failed from the wilful or negligent 

conduct of the complaining party (d). Probably the real 

difficulty has often been to distinguish between two things 

which are sometimes called by the same name, viz,y the 

betrothal, which is only a promise to marry, and the 

pledging of troth, which forms part of the marriage itself. 

The former class of betrothal is often celebrated with 

much ceremony ; but this does not alter its character. 

So, in the actual marriage there are numerous formalities, 

and many recitals of holy texts ; but the operative part of 

the transaction consists in the seven steps taken by the 

bridal pair. On the completion of the last step, the actual Saptapati. 

marriage has taken place (e). Till then it is imperfect 

U) Mann, ix., § 99. 

(a) Narada, xii., § 30— 38 ; Yajnavalkya, i., § 66, 66; Vaawhtha, 2 Dig., 4b7, 
490; Katyayana, ib.y 491 ; Mitaksbara, ii., 11, § 27. 

(6) Narada, xii., § 35 ; Umed v. Nagindas, 7 Bom. H. C. O. C, 122 ; Nowbut 
V. Mt. Lad Kooer, 6 N.-W. P., 102; re Gunput Narain Singh, 1 Cal., 74 ; Kari- 
ha$saka v. Karibasaana, 8 Mysore, 153. 

(c) Mitakshara, ii., 11, § 28. Mulji Thakersey v. Gomti, 11 Bom., 412; 
Hambpat v. TimmayyOf 16 Bom., 673 ; Purshotamdaa v. PurahotamdaSj 
21 Bom., 23. 

(d) Divi VirasaXingam v. Alaturti, Mad. Dec. of 1860, 274. 

(e) Manu, ix., § 227 ; Narada, xii., §2; Yama,2Dig., 488; Viramit., ii., 2, §4; 
Coleb. Essays, 128. See cases last cited. As to the ceremonies essential to a 
Brahman marriage, see Vaikantam v. KalUpiran, 26 Mad., 497. 



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•^^^ MARRIAGE AND SONSHIP. [CHAP. IV» 

and revocable. Even this proceeding, however, is not 
absolutely essential. It is a form which, if complied with^ 
is conclusive. But if it is shown that by the custom of 
the caste, or district, any other form is considered as 
constituting a marriage, then the adoption of that form> 
with the intention of thereby completing the marriage 
union, is sufficient (/). In some communities there is a 
custom that, after the actual marriage has taken place, a 
further ceremony must be performed before cohabitation^ 
and if the man who has gone through the first ceremony 
declines to perform the second, the girl may lawfully marry 
again (g). In Bombay, a custom was proved, and held 
valid, that mere babies should be married with all religious 
ceremonies, but that the marriage should not be treated as 
effectual, unless certain conditions agreed on at the time 
were performed on either side (A). But the legal result of 
such custom would appear to be that there is no binding 
and complete marriage until after the second ceremony, or 
the performance of the condition precedent. In the 
absence of any such custom the marriage is complete^ 
even though never followed by consummation and thought 
in consequence of the conversion to Christianity of one 
party, the other renounces the obligations of marriage (i). 
ijr^iarmar- g gg ^ marriage actually and properly Celebrated will be 
legal and binding, although it has taken place in violation 
of a previous agreement to marry another person (k) ; or 
although it has been performed without the consent of the 
person whose consent ought to have been obtained (I), For 
this is one of the cases in which necessity compels the 
application of the maxim, Factumvalet qttod fierinon debuit. 
When the marriage is once completed, if either party 

(f) Mnnn, iii.. § 36 ; see fntwah, 2 M Dig.. 46; Oaiha Ram v. Moohita 
Kochin. 14 B. L. R., 298; S. C, 28 Suth., 179 iKally Chum v. Dukkee, 
6 Cftl., 692: V. N. Mi»ndlik, 404 ; Hurry Chum v. Nimai Chand, 10 Cal., 13S. 
When the fact of the celebration of marriope is establiehed, it willbe presamed^ 
in the absence of evidence to the contrary, that all the necessary ceremonies have- 
been complied with. Bn'ndabun Chundra v. Chundra Kurmohar^ 12 Cal., 140. 

(g) Bonlrhavd v. Janokee, 26 W. R., 386. 

(//) Bat Ugri v. Patel Purshottam, 17 Bom., 400. 

(i\ A dminUtrator- General v Anandachari, 9 Mad., 466. 
\ ik) Khooshal v. Bhugwan Motee, 1 Bor., 188 [155] . 

\ {D Baee Bulyat v. Jeychund, Bellasis, 43 ; S. C, 1 Mor. N. S., 181, ante § 85. 



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PARA. 96.] IRREGULAR MARRIAGES. 119 

refuses to live with the other, the case is no longer one for 
specific performance of a contract, but for restitution of 
conjugal rights. It has long since been settled that such 
a suit would lie between Hindus, but there was much how enforced, 
conflict of authority as to the mode in which the decree 
was to be enforced (m). The point has now been settled 
by 8. 260 of the Civil Procedure Code (Act XIV of 1882), 
which provides that where the party against whom the 
decree has been made has had an opportunity of obeying 
it, and has wilfully failed to do so, it may be enforced by 
imprisonment, or by attachment of property, or by both (n). 
Any person who assists a wife in leaving, or remaining 
away from her husband without a justifying cause, and, 
a fortiori, any one who enters into a criminal connection 
with her, by which he seduces her from her home, is 
liable to an action for damages (o). Primn fade, the 
husband is the legal guardian of his wife, and is entitled Costodyof wife. 
to require her to live in his house from the moment of the 
marriage, however young she may be. But this right 
does not exist where, by custom, or agreement, the wife 
is to remain in her parents* house, until puberty is estab- 
lished (jp). It has been held in Allahabad in a case 
between Muhammedans that a suit for jactitation of 
marriage was cognisable in a Civil Court {q). 

(m) See Gatha Bam v. Moohiia Koehin, 14 B. L. R., 298 ; S. C, 28 Suth., 179 ; 
Jogendrmtundivi v. Hurry Do89y 5 Cal., 500; Pakhandu v. Manki.S All., 606; 
Dadaji ▼. Bukmahai, 10 Bom., 301 ; Binda v. Kaunsilia, 13 All., 126 ; Kesha 
Lai V. Bai Parvati^ 18 Bom., 327: the suit lies in the (Joart within whose juris- 
diction the husband resides. Lalitagar v. Bai Suraj\ 18 Bom., 316. As to the 
evidence required in such a suit, see Siirjyawoni v. Kalikavta, 288 Cnl., 37. 

(») Under this section, as in England, the Court will take into consideration 
any circumstances which estitblish a reasonable objection on the part of the wife, 
and will impose proper conditions upon the husband in reference to such 
objection Paigi v. Sheonarrain, 8 All., 78. It is no defence to such a suit that 
the defaulting party is, from illness or other cause, unfit for conjugal intercourse, 
though if the complainant was the party so unfitted, and if the incapacity was 
of a permanent and incurable nature, it would ^ prim d facie ^ he a bar to the 
relief sought for. Purshotamdas v. Bai Mani. 21 Bom., 610. 

(o) Zamoona Boyee v. Narayen, 1 Bom., 164 ; Linga v Ooojia^ 2 Mysore, 
144. As to the a«»sespment of damages, see Siddah v. Doddannah, 12 Mysore, 
64. following KeUy v. Kelly, 3 B. L. R. (O. C. J.), 67. 

ip) Kateeran v. Mt. G^ndkenee, 23 W. R., 178; Suntoah Bam v. Gera Paf- 
tuek, ib., 22, re Dhuronidhnr Ghose, 17 Cal., 298 ; Surjyamoni v. Kalikanta, 
28 Cal., 87 ; Tekait ^fon Mohini v. Basanta Kumar, 28 Cal., 751. Cf. Arumuga 
T. Vtraraghava, 24 Mad., 255. 

(q) Mirasmat Alt v. Mahmood-ul-Ni98a, 20 All., 96. 



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120 MARRIAGE AND SONSHIP. [CHAP. IV, 

Malabar § 97. The legal, or rather the legalised, relations be- 

mamagee. tween the sexes ion the West Coast of India are so depend- 
ent upon the system which governs family property in 
that region, that it is impossible to examine the one 
without understanding the other ; that system, which is 
called in Canara, Alya Santana, in the more southern 
districts, Marumakkathayam (r), has for its central 
principle that descent is always traced through the female 
line to a female ancestor. " The relation of husband and 
wife, or of father and child is not inherent in the conception 
of a Marumakkathayam family '' (s). Each male who is 
born into the family acquires a personal position as a 
member of the tarwad and a claimant upon its property, 
• but he never becomes a stock of descent ; the family is 
perpetuated by the female members. The person vv^ho 
occupies the position of a son to him is not his own son, 
who is a stranger to the family, but the son of his sister. 

Mythical origin Such a system, which ignores paternity, must have ori- 
kaSb«^«m?^ ginated either in absolute sexual license, or in polyandry. 
A mythical source is ascribed both to the Marumakkathayam 
and the Alya Santana law. The former is attributed to 
Sri-Parasu Eama, one of the incarnations of Vishnu who, 
by the exercise of his supernatural powers, reclaimed from 
the sea the land which now lies between it and the Western 
Gh^ts, and peopled it partly with Brahmans, and partly 
with an inferior race, who ministered to their pleasures 
and wants (t). The present teaching of the Nambudri 
priesthood, and the beliefs and practice of the leaders of 
society in Marumakkathayam families, are derived from a 
work called the Kerala Mahatmyam, which is supposed 
to embody the teaching of Parasu Eama. ** It recites how 
Parasu Rama pronounced his commandment to the women 
(not being of the Brahman caste) to satisfy the desires of 
Brahmans, enjoining upon them to put off chastity and 

(r) Each term hae exactly the same meaning, descent in the Hue of a Nephew 
or sister's son. Mai. Mar. Rep., 105. 
(«) Mai. Mar. Rep., 49. {t) Mai. Man., 121 ; Travancore Census, 1891, 178. 



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PARAS. 97 & 98] MALABAR MARRIAGES. 121 

the cloth which covered their breasts, and declaring that 
promiscuous intercourse with three or four men in com- 
mon, was void of the least taint of sin" (u), Shaikh- 
^ui-ud-din, who wrote about the middle of the sixteenth 
•century, and Hamilton in his New Account of the East 
Indies (1727), each speaks of the Nayar women as cohabiting 
with a plurality of husbands. Hamilton says as many as 
twelve but not more, with whom they shared their time 
ty mutual arrangement (v). 

The Alya Santana system is said to have been introduced Of AiyaSantana. 
into South Canara A. D. 77 by Bhutala Pandya. He had 
teen surrendered, as a sacrifice, to Kundodaiu, the king of 
the demons. When Kundodara demanded another sacrifice, 
the reigning prince, his uncle, refused to grant one, upon 
which Kundodara compelled the prince to bestow his 
Tcingdom upon his nephew, and not upon his sons, and 
this example was made compulsory by Bhutala Pandya 
tipon his subjects (w). 

§ 98. The Marumakkathayam system is followed by all classes governed 
the Nayars (x) with the sole exception of the Mannadiyars thayam!"^^ *" 
in Palghat, and by the great majority of the Tiyans and 
Mukkavans in North Malabar, and by a very small number 
of the same castes in South Malabar and Wynaad (y). 
The great bulk ot the population of Travancore follow the 
same rule, which has been adopted by a few families of 
the Nambudris and Muhammedans and by the Ambalavasis, 
a caste peculiar to Travancore, consisting of Brahmans 
who, from one cause or another, have lost caste (z). 

The Alya Santana law is followed in South Canara ** by Aiya Santana, 
all the old Tulu land-owning, cultivating, and labourer 

{u} Mai. Mar. Rep., 10. The Kerala Mahatmyam is said not to be really an 
ancient treatise, but to have been composed about 150 years ago by a Nambudri 
Brahman, ibid.t 61. 

(v) Mai. Man., I, 136 ; Cochin Census Rep., 1891, § 177. 

(w) Mai. Mar. Rep., 105. The legend is given in a different form in the South 
Canara Mantuil, I, 141. 

{x) As to the origin and early position of the Nayars, see the Madras Census 
of 1S91, VIII, 222; Mai. Man., I, 111, 131. 



(y) Mai. Man., 1, 184, 154; Mai. Mar. Rep., 5. 



Travancore Census Rep., 1891, pp. 263, 743 ; Cochin Census Rep., 1891, 
$176. 



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122 MARRIAGE AND SONSHIP. [CHAP. IV, 

castes, as well as by the Moplahs, who are the descendants 
of Arab settlers who formed connections with Tulu women 
of the land-owning classes, and adopted the prevailing rule 
of inheritance (a). Also by the majority of the Bants, a 
military class, who correspond to the Nayars (6). 
Makkathayam. The Makkathayam system is followed by all the Brah- 
mans, with the few exceptions above noticed, and by the 
low-class Malayalis, the agrestal slaves and the hill- 
tribes (c). 

§ 99. Among the Nayars polyandry, as the recognition 
by a woman of several men, each having a legal claim 
to be her husband, seems to have now died out, existing^ 
if it exists at all, only as a survival in some nooks and 
corners of tlie district (d). It seems also to be clear that,, 
among the better classes at all events, the Nayar marriage 
has begun to assume a permanence which gives it all the 
appearance of a binding contract. " According to the 
North Malabar witnesses the rule is that the union of a 
man and woman lasts for life. The wife lives with her 
husband. Divorces are almost unheard of, or are extremely 
rare. Eespectable people set their faces against polygamy.*' 
The same rule seems to prevail throughout the greater 
part of South Malabar (e). A similar change of practice 
is observed in Cochin (/). The question still remains^ 
however, what is the jural relation created by a Nayar 
marriage, as regards the restrictions which it imposes 
upon the parties, and as affecting third persons who 
interfere between the parties ? The answer will require 
an examination of the various forms which are spoken of 
as actual or quasi-marriages (g). 

(a) S. Can. Man., I, 186. (6) S. fan. Man., I, 158. 

(c) Mai. Man., I, 156 ; f -ochin PensuB Rep., 1891, § 180 ; Travancore CeuRUs 
Rep., 1891, pp. 253, 770—776. The mere fact that a community in Malabar 
follows the Makkathayam system of saccession by sons does not lead to any 
necessary inference that it is fj^ovemed by the entire Hindu law of inheritance. 
Barichnn v. Perachi^ 16 Mad., 281. 

id) Mai. Mar. Rep.. 103. (e) Mai. Mar. Rep., 86. 

(/) Cochin C!enRUB Rep., 1891, § 178. 

\g) An initial difficulty arises from the significant fact, that the proper 
Malayalam terms for marriage are not applied by the Marumakkathayam Hindas 
(O the union of man and woman among tnemselves. Mai. Mar. Rep., 12. 



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PAHAS. 99 & 100.] MALABAR MARRIAGES. 123 

" As regards the freedom either to marry, or not to Marriage is 
marry, it is conceded to women as well as to men ; the °^ *°° 
rule of Hindu law, which prescribes marriage as indispen- 
sable to women, having no obligatory force either among 
Nambudri Brahmans, or among Nayars and Tiyars '* (A). 

The only ceremonial savouring of matrimony, which Taiikettu- 
appears to be indispensable to a Nayar girl, is that known * y****™- 
as the tali-kettu-kalyanam, or marriage by tying the tali. 
It ought to be performed before puberty, generally about 
eleven. The bridegroom (manavalan) is a boy whose 
horoscope is suitable to hers. The ceremonial, which 
lasts four days, follows out the whole drama of an actual 
marriage, going even to the length of a fictitious cohabita- 
tion. It terminates with the tearing of a cloth, the pieces 
of which are given to the boy and to the girl, and which 
typifies a divorce. The whole thing is then at an end. 
The parties separate, and may possibly never see each 
other again. The effect of the ceremony is to give the 
girl a marriageable status, without which she cannot 
enter into any matrimonial contract. Failure to perform 
it is said to involve excommunication from caste (i). The 
symbolical character of the ceremony is shown by the 
fact that the same manavalan will tie the tali on a 
number of girls at the same time, which naturally reduces 
the cost to each. Where extreme economy is required, 
the manavalan is dispensed with. The girl's mother 
makes an idol of clay, adorns it with flowers, and invests 
her daughter with the tali in the presence of the idol (k), 

§ 100. The difference between the tali-kettu-kalyanam, Sambhandiiam. 
and the various forms of marriage, which come within 

ih) Mai. Mar. Rep., 57. 

(i) Mai. Mar. Rep., 18, 54. 90, 101 ; Mai. Man., 1, 134 ; Cochin Census, 1691, 
$ 176 ; Travancore CensuB, 1891. 767 ; Madras Census, 1891, XIII. 225. It has 
been suggested that the effect of this ceremony is to free the girl from the gods 
who are supposed to lay claim to every virgin. Mai. Mar. Rep., 18, 19. 

(k) Mai. Mar. Rep., 19, 20, 64. Among the Tiyars of North Malflbar, but 
not of South Malabar, the tali-kettu-kalyanam exists, and is subsequently 
followed by the practical marriage called manfalam. Madrns Census of 1891, 
XUI,298. 



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124 MARRIAGE AND SONSHIP. [cHAP. IV, 

the generic name sambhandham, or marriage properly so 
called, is that the latter is intended to be followed by 
cohabitation and the former is not. This being so, the 
persons who can enter into this relation with each other 
are strictly defined. All sexual relations between Nayars 
and Tiyars, or members of any other caste, are absolutely 
forbidden on penalty of excommunication. The man can 
associate with a Nayar woman of sub-divisions of the caste 
inferior to his own. A Nayar woman can associate with 
men of castes superior to her own, but not with men of 
lower castes, or of sub-divisions of the Nayar caste inferior 
to her own (Z). There is an exception to the latter part 
of the rule in the case of Nayar women in and around the 
Cochin taluq*. As regards relationship, the limit within 
which one may not marry, is for both males and females 
in South Malabar the circle of one's own tarwad, mean- 
ing by tarwad all members tracing descent from a common 
female ancestor in the female line only. In North 
Malabar, this limit is wider, and includes all the members 
of the same illom, which consists of several tarwads, with 
no community of interest or even pollution, provided they 
can all be traced back to a common ancestor, however 
remote (m), 
t:!eromoiiiefl. As to the essentials of a sambhandham, the Malabar 

Marriage Report says : ** Many respectable witnesses tell 
us that no formality, religious or secular, need attach to 
sambhandham, and that in very many cases the consent 
of the girl and of her guardian are all that is thought 
necessary. But it is also an undoubted fact that recent 
usage (especially in North Malabar) tends to surround 
the occasion of first cohabitation with a more or less 
elaborate ceremonial." The ceremonies usual with various 
forms of sambhandham are then described in much detail, 
the most solemn and fashionable being the ** podamuri '* 
form. Of these, the Commissioners say : " it is an 
essential part of the podamuri ceremony that there should 

\l) Mai. Mar. Kep., 5, 7, 55. [ni) ModrAS Census, 1H91, XIII, 227. 



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PABA. 100.] MALABAR MARRIAGES. 125. 

be a gift of cloth by the bridegroom to the bride, and of 
no other form of sambhandham can it be said that 
any formality is of its essence '* (;i). 

With reference to the legal results of a sambhandham, whether it 
it is admitted that exactly the same form is frequently lepai marrirgo. 
adopted as sanctioning the connection between a Nambudri 
Brahman and a Na5'ar woman, which is not asserted to 
constitute a marriage ; that a Nayar woman, who consorts 
with a Nayar man of suitable rank without any form of 
marriage,is not put out of caste, even in respectable families, 
that the religious teaching of the Nambudri Brahmans, who 
are the priests of the Nayars, actually denounces chastity 
in the women ; that there is no religious element in the 
marriage itself ; and that the right of divorce, though be- 
coming gradually restricted among the higher classes to 
fairly justifying causes, practically puts it in the power of 
either party to the union to dissolve it at pleasure, the 
other party having no remedy (o). From these premises 
the conclusion was drawn by the Malabar Marriage Law 
Commission, " that Marumakkathayam was and still is 
destitute of the institution of marriage.*' The same con- 
clusion is reached by those who have investigated the 
working of the system in Cochin and Travancore (p). 

This view is not inconsistent with the equally admitted 
fact that such unions are tending to become as permanent 
as marriages under the strictest system, that they are 
guarded with the utmost jealousy, and that their violation 
is most savagely avenged (q). Jealousy and vengeance 
are not limited to unions which are binding by law. 

""(VrMaU Mar. Rep.. 21— 24, '98. 

(o) Mai, Mar. Kep., 24, 27, 58, 64; Madras Census, XIII, 228. There is 
nothing to prevent a womKn, who has been separated from her husband, or after 
hin death, from marryin«r again. Travancore Census, 1891, 770; Mai. Mar. 
Rep., 57. The child born daring the continuance of a sumbhanilham maiTiage is 
presumably the offspring of the male partner so as to sustain a maintenance order 
against him under the Criminal Procedure Code, Act V of 1898, s. 488. 
Venkatakrishna Put tar v. C him ma Kutti, 22 Mad., 246. 

(p) Mai. Mar. Rep., 27; Cochin Census, 1891, § 178; Travancore Census, 1891, 
767. 

{a) Mai. Man., 136 ; Mai. Mar. Rep., 102. In North Malabar, it is the practice 
for Najar females to reside in the tarwad of the men with whom tfcey cohabit, and, 
during such residence, they and their children are maintained at the expense of 
the tarwad of the males. Parvati v. Kumaran, 6 Mad., 341. 



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126 MARRIAGE AND SONSHIP. [CHAP. IV, 

Aiya Santana § IQI. The sexual relations of those who are governed 

by Alva Santana law bear upon their face less marks of 
license than those of the Marumakkathayatn classes ; the 
legendary teaching of unchastity by Parasu Rama is no 
part of their religion. The Brahman chronicles record 
that the Brahmans introduced by Parasu Rama were driven 
out, and that the first establishment of Brahmans took 
place in the eighth century under the auspices of Kadamba, 
the Jain sovereign of North Canara. When introduced, 
they never assumed the position in regard to the women 
of the country to which the Nayars submitted in regard to 
the Nambudris (r) . The fictitious marriage of the southern 
districts was unknown in Canara, even to the Bants, who 
most closely resemble the Nayars. Betrothal was the first 
step towards an actual marriage, and the marriage was 
followed by cohabitation in the house of the husband (s). 
Mr. M. Bangera, District Munsif of Mangalore, and 
a member of the Malabar Marriage Law Commission, 
says that the marriage is held sacred by the society to 
which the parties belong, and Mr. Sturrock, C. S., formerly 
Collector and Magistrate of the district, reported to the 
Commission as follows : " The impression formed by me 
during thirteen years* residence in South Canara was that, 
among the higher classes, the Tulu women, who follow the 
Alya Santana rules, enjoyed a reputation for singular 
fidehty and that even the lower classes did not regard the 
marriage tie more lightly than their neighbours, governed 
by other laws.'* It seems clear, however, that both the 
strictness of the marriage bond, and the facility for escaping 
from it by divorce, are more matters of high-class feeling 
than of absolute obligation. Men and women have an equal 
right to effect a divorce. It is said that divorce is effected 
generally on reasonable grounds, such as adultery, and dis- 
obedience on the part of the wife, and cruelty on the part of 
the husband. ** But it is not uncommon among the lower 
classes to get divorce effected on insufficient grounds, or at 

(r) S. Can. Man., I, 1»4, 142. As to the Bants, see ibid., 54, 156. 
i«) S. Can. Man., I, 160; Mai. Mar. Rep., 107, 109. 



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PARAS. 101 & 102.] MALABAR MARRIAGES. 127 

the mere will and pleasure of either the husband or the 
Tvife. Such conduct is, however, looked down upon by 
society with disapprobation " (t). This was the view 
upon which the High Court acted in two cases, where it 
decided that the relation of husband and wife under Alya 
Santana law did not constitute a marriage which could be 
either enforced or protected (u). The Alya Santana races 
do not intermarry with Nayars or Tiyars, and the rules 
of anuloma and pratiloma, which allow men of superior 
classes to enter into sambhandham with women of inferior 
classes are not practised among them. Persons of the 
same lali or gotra are also incapable of marriage xmion, 
and even sexual intercourse between persons so connected 
entails loss of caste (v). 

Widows are allowed to marry, but the exercise of the Widow marriage, 
privilege is generally confined to young widows. Those who 
have had children by the first husbands do not ordinarily 
remarry. In no case can a widow marry any one but a 
widower. The gradual tendency to follow Hindu practices 
is causing permanent widowhood to be looked upon as 
more respectable {w). 

§ 102. The Nambudri Brahmans, with only rare excep- Numbudri 
tions, follow the Makkathayam law, in which descent from ™*"***f*^ 
father to son proceeds on the usual principles. The 
peculiarity of their marriage system is that only the 
eldest son can marry (x). This rule is supplemented by 
the practice that the younger members should form con- 
nections with the Nayar women. Such unions are fre- 
quently dignified with the ceremonials of a Nayar marriage 
but they have no binding efficacy. Among the kovilogams, 
or families of the ancient rulers, the ladies go through a 

(<i Mai. Mar. Hep., 10H« 109, 110; S. Can. Man., I, 142. 

(I*) Higadi r. Tonga, 4 Mad. H. C, 196; Koraga v. Reg., 6 Mad., 874. An 
iicX to enable persons following the Marumakkathayam or Alya Santana law (o 
adopt a form of marriage, which shall be considered legally binding, has now 
been passed by tbe Madras Legislature, Madras Act IV of 1896. 

(p) Mai. Mar. Rep., 37, 75, 106; 8. Can. Man., I, 148, 160. 

{w) Mai Mar. Rep., 7.5, 10; S. Can. Man., 1, 143, 161. 

{x) This is tlie 69th of the 64 rules called Kerala Anacharam, said to have 
been promolgated bySankara Acharya in A. D. 825. Mai. Man., I, 156. The 
peeaharities of the law, which gorems Nambadri Bralimans, were discnssed in 
the case of Vasudevan v. Secretary of State^ 11 Mad., 157. 



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128 MARRIAGE AND SONSHIP. [CHAP. IV, PARA. 102.] 

ceremony before maturity similar to the tali-kettu-kaly- 
anam. Anyone who wishes to do so may then consort 
with the person who ties on the tali. " If not, she con- 
sorts with a Nambudri Brahman without any further 
formality or ceremony, and, after a time, she is free to put 
him away at her pleasure, and take another Nambudri in 
his place with the consent of her karnavan and protector,, 
the senior Kajah of the kovilogam, for the time being.*" 
In any case the Nambudri is maintained by his own 
family, while his offspring is incorporated into the family 
of its mother (y). 
Adult marriage It follows from this arrangement that the Nambudri 

of women. . . . 

women find it difficult toprovide themselves with husbands. 
Accordingly the rule of Hindu law, which requires every 
girl to be married before puberty, does not exist in their case. 
They can be married at any age, and frequently never are 
married. In the case of those who die unmarried, the corpse 
cannot be burnt till a marriage ceremony is performed,, 
which, in the time of the Abb6 Dubois, was carried out to 
the extreme limits of realism ; but at present is said to- 
consist in the tying of a tali string round the neck of the 
corpse while lying at the funeral pile (z). 

Among the limited class of Nambudri Brahmans, who 
follow Marumakkathayam law, marriage is said to be 
** solemnised with all the religious ceremonies that are 
undergone with every Brahman marriage in India. The 
homam, the mantrams, the Saptapadi ceremonies are 
rigidly and strictly observed" (a). 

In the case of all Brahman marriages, whether of Nambu- 
dris or others, wndow marriages are strictly forbidden (6). 
Neither husband nor wife can divorce the other except on 
the ground of excommunication from caste (c). 

Oj) Mai. Mar. Rep., 24, 63; Cochin Census, 1891, § 175; Travancore Census, 
1891,683. 

is) Mai. Mar. Rep., 8, 57; Mai. Man., 127; Dubois, 17; Cochin Census, 
1891, § 175. (a) Mai. Mar. Rep.. 103. 

(6) Mai. Mar. Rep., 57, 103; Travancore Census, 1891, 686; Cochin Census^ 
1891, § 181. (c) Travancore Census, 1891, 683; Mai. Man., 126. 



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CHAPTEK V. 

FAMILY RELATIONS. 

Adoption, 

§ 103. Thbrb is a singular disproportion between the Little notioed in 
spflbce necessarily devoted to adoption in the English ^^^ ^ '^^** 
works on Hindu law, and tnat which it occupies in the 
early law-books. One might read through all the texts 
from the Sutra writers down to the Daya Bhaga without 
discovering that adoption is a matter of any prominence 
in the Hindu system. But for the two treatises translated 
by Mr. Sutherland, it may almost be affirmed that Eng- 
lishmen would never have discovered the fact at all. 
Even in Jagannatha's Digest, the subject only takes up 
thirty-two pages. The fact is that the law of adoption, as 
at present administered, is a purely modern development 
from a very few old texts. The very absence of direct 
authority has caused an immense growth of subtleties and 
refinements. The effect that every adoption must have 
upon the devolution of property causes every case that 
can be disputed to be brought into Court. Fresh rules 
are imagined, or invented. Notwithstanding the spiritual 
benefits, which are supposed to follow from the practice, it 
is doubtful whether it would ever be heard of, if an adopt- 
ed son was not also an heir. Paupers have souls to be 
saved ; but they are not in the habit of adopting. 

§ 104. I have already (§ 68) pointed out the advantages importance of 
which all early races would derive from the possession of 
sons, and the peculiar necessity for male offspring which 
would press upon the Aryans, on account of their religious 
system. This want was amply met by the early Hindu 
law, which provided twelve sorts of sons, all of whom were 
competent to prevent a failure of obsequies, in the absence 
9 



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130 LAW OP ADOPTION. [CHAP. V, 

of legitimate issue (a). For religious purposes, the son ^f 
the appointed daughter seems to have been completely 
equal in efficacy with the natural-born son (6), and where 
any one of several brothers had a son, the latter was con- 
sidered to be the son of all the brothers ; Eulluka Bhatta 
actually adds a gloss : " So that if such nephew would be 
the heir, the uncles have no power to adopt a son " ; and 
the same view was maintained by Ohandesvara and other 
commentators (c). It is evident, therefore, that in early 
Comparative times the five sorts of adopted sons must have been of 
^d^i^son. very secondary importance. Apastamba expressly states 
that ** the gift or acceptance of a son, and the right to buy 
or sell a child, is not recognized" (d). And Katyayana 
permits the gift, or sale, of a son during a season of 
distress, but not otherwise («). The same low estimation 
of adopted sons is evidenced by the rank which they 
occupied in the order of sons. A reference to the table 
which accompanies § 68 will show that, out of fourteen 
authorities there quoted, only five place even the dattaka 
among the first six. Now this is not a mere matter of 
arrangement, for they all, without exception, give rights 
of inheritance to the first six sons, which are denied to the 
remaining six. No doubt Manu is one of the five who 
1 thus favours the adopted son. But it may be ques- 

tioned whether his text has not undergone an alteration 
in that respect. Both Yajnavalkya and Narada, who were 
subsequent to Manu, place the adopted among the later six. 
Narada expressly states that he took Manu as the basis of 
his work. An examination of the marginal references in 
Stenzler's Yajnavalkya will establish that he did the same. 
It will be seen by the table that these two agree much 
more closely with each other than either does with Manu 

(a) Manu, ix., § ISO; of. § 161, which, as explained by Kullaka Bhatta, eeema 
to be an interpolation, introduced when subsidiary eons had become obsolete. 
Vrihaspati, Dattaka Chandrika, i., § 8. 

{b) Vishnu, xv., § 47; Manu, ix., § 217-189. 

(e) Vasishtha, xvii., § 8; Vishnu, xt., § 42, Manu, ix., S 182; 8 Dig., 266 ; Dai. 
taka Chandrika, i., § 21. {d) Apaatamba, u., 18 ; vi, $ 11. 

(e) Dattaka Mimamsa, i., § 7, 8; Mitakshara, i., 11, § 10 refers this prohibition 
io the giver not the taker of the son. A contrary view was taken by Apararka. 



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PABA. 105.] FAMILT BBLATIONS. Idl 

as it now stands. It is difficult to account for their differ- 
ing from so high an authority, if they had before them the 
text which we possess. In any case, the mere fact that 
differences of opinion did exist on such a point would seem 
to show that it had not assumed any great prominence. 

§ 105. When the number of subsidiary sons was dimi- Diminished 
nished from the causes I have already suggested (§ 78),o?^^tionr^** ^ 
the importance of the adopted sons, who alone were left, 
would naturally increase. Even where a brother's son 
existed, though he might procure lor his uncle all the 
required spiritual blessings, still an adoption would be 
necessary, '' for the celebration of name, and the due 
perpetuation of lineage" (/). As partition and self- 
acquisition became more common, the latter objects would 
naturally be more desired. It is singular, then, that we 
should find the same diminution exhibiting itself in the 
forms of adoption (g). The explanation is probably to be 
found in the growth of Brahmanical influence, and the 
consequent prominence given to the religious principle. If 
the primary object of adoption was to gratify the manes of 
the ancestors by annual offerings, it was necessary to 1 
delude the maneSf as it were, into the idea that the offerer | 
really was their descendant. He was to look as much like 
a real son as possible, and certainly not to be one who 
could never have been a son. Hence arose that body of 
rules which were evolved out of the phrase of Qaunaka, 
that he must be " the reflection of a son" (A). He was to 

(/) Dattoka Chandrika, i., § 22; V. Darp., 789. 

(^) In addition to the general authorities cited, ante § 78, see as to the obso- 
leteness of the KrUa form, 1 Stra. H. L., 132; 1 N. C, 72; Eahan Kishtn- v. 
Haris Chandra, 13 B. L. B., Appz. 42; S. C, 21 Suth., 381. As to the Svayam- 
datta, Bash^tiappa v. Skivlingappa, 10 Bom. H. C, 266. As to a form called 
palukpatro, Kalee Ohunder v. Sneeb Chunder^ 2 Suth. , 281 . Other forms might 
perhaps be valid, when sanctioned by local custom, as the Krita system is said 
still to exist among the Gosains, 1 W. MaoN., 101. 

{h) Dattaka Blimamsa, v., § 16. It seems possible that this metaphor is itself 
a mistake. Dr. BUhler translates the yerse, *' He then should adorn the child, 
which (now) resembles a son of the receiver's body ; that is, which has come to 
resemble a son by the previous ceremony of ^ving and receiving. See Journal, 
As. Soc. Bengal, 1866, art. OawMtka 8mrit%. The translation, as given in the 
Dfcttaka Mimamsa, is, however, followed by Mr. Cblapohandra Sarkar, at 
p. 906 of his work on adoption, and by Mr. Mandlik, p. 62, in his translation 



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132 LAW OP ADOPTION. [cHAP. V, 

be a person whose mother might have been married by 
the adopter (i) ; he was to be of the same class ; he was 
to be so young that his ceremonies might all be performed 
in the adoptive family ; he was to be absolutely severed 
from his natural family, and to become so completely a 
part of his new family as to be unable to marry within its 
limits. His introduction into the family must appear 
to be a matter of love and free-will, unsullied by every 
mercenary element. All these restrictions had the effect 
of eliminating the other forms of adoption, and leaving the 
I dattaka alone in force. 

Influence of § 106. It must uot be supposed that the religious 

sepniar motives, motive for adoption ever excluded the secular motive. 
The spiritual theory operated strongly upon the Shastries 
who invented the rule ; but those who followed them were, 
in all probability, generally unconscious of any other aim 
than that of securing an heir, on whom to lavish the family 
affection which is so strong among Hindus. The propriety 
of this motive was admitted by the Sanskrit writers them- 
selves. In the ceremonial for adoption given by Baud- 
hayana , the adopter receives the child with the words : 
" I take thee for the fulfilment of religious duties. I tak e 
thee to continue the line of my ancestors " (k). A text 
which is by some attributed to Manu states that " a son of 
any description must be anxiously adopted by one who has 
none, for the sake of the funeral cake, water and solemn 
rites, and for the celebrity of his name*' (I). And the 
author of the Dattaka Chandrika admits that even where 
no spiritual necessity exists, a son may, and even ought to be 
adopted, for " the celebration of name, and the due perpet- 
uation of lineage" (m). In fact, the earliest instances 



of the Mftyakha where the passage occurs in fall, and was accepted in preference 
to that of Dr. BUhler by Banerji, J., 17 All., p. 321. Edge^ C. J., was of the 
opposite opinion, ibid.f p. 886. 

(t) It will be seen {post § 186) that t)ie origin and scope of this rule is open 
to much doubt. 

(k) The whole passage is translated by Dr. Biihler in his article on ^annaka, 
Journ. As. Soc. Bengal, 1866, and in his edition of Bandhayana, vii., 6. 

[l) Dattaka Chandrika. i., § 9 ; 8 Dig., 297. (m) Ibid., § 22. 



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PABA. 106.] MODES AND MOTIVES. 133 

of adoption found in Hindu legend are adoption of 
daughters (n). The Thesawaleme shows that such adop- 
tions were practised among the Tamil races of Southern 
India (o). At the present day the Bheels carry away girls 
by force for wives, and then, with a zeal for fiction which 
is interesting among savages, adopt them into one family, 
that they may marry them into another (p) . The Kritrvma 
form of adoption, which is still in force in Mithila, and Adoptions 
which, in several particulars, strongly resembles that BSSLSSoja 
which is practised in Jaffna, has no connection with reli- '•^■^ 
gious ideas, and is wholly non-Brahmanical. Among the 
tribes who have not come under Brahmanical influence, 
we find that adoption is equally practised ; but without 
any of those rules which spring from the religious fiction. 
One Sanskrit purist actually laid it down that Sudras 
could not adopt, as they were incompetent to perform the 
proper religious rites (g). As a matter of fact they always 
did adopt ; but were expressly freed from the restrictions 
which fettered the higher classes. They not only might, 
but ought to, adopt the son of a sister, or of a daughter, 
who was forbidden to others ; and they might take, as 
their son, a person of any age, and even a married man (r) ; 
that is to say, they adopted persons who made no pretence 
to religious fitness, but who were perfectly suitable for all 
other objects. So, in the Punjab, adoption is common to 
the Jats, Sikhs, and even to the Muhammedans, just as in 
other parts of India. But with them the object is simply 
to make an heir. " The religious notion of a mystical 
second birth is not imported into the transaction." No 
religious ceremonies are used. There is no exclusion of 
an only son, or of the son of a daughter, or of a sister, nor 
is there any limit of age. Of later years, however, a ten- 
dency to introduce these Brahmanical rules is showing 
itself. The explanation given by Mr. Justice Campbell is 
interesting, as illustrating the way in which the process 

in) See DatUka Mimamsa, tu., $ 30—38. (o) Thesawaleme, ii., fi 4. 

(p) Lyall, Asiatic Studies, 163. 

{q) Vachespiiti, cited Dattaka Mimamsa, i., § 26. (r) See post § 186, 141. 



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134 LAW OF ADOPTION. [CHAP. V, 

lias often taken place : — " In Sikh times when the land 
was of little value, and young men of much value, the 
introduction of a new boy into the community was proba- 
bly looked on with satisfaction. But by the time of our 
regular settlements the value of land was discovered, and 
the brotherhood would naturally look to the chances of 
dividing the land of an heirless co-sharer, rather than to 
the introduction of an extra hand to share in the profits, 
which had begun to be considerable. Hence the main 
body of a tribe would be inclined to enter as a custom 
what they wished should be the custom, and unless there 
were men with interests to defend, the general wish for 
the future was entered without protest " (5). Among the 
Jain dissenters, and in the Talabda Koli caste in Western 
India, adoption is also practised, but without any religious 
significance attached to it {t). It is now, however, estab- 
lished by decision that the Jains have so completely 
adopted Hindu law, that even rules of the law of adoption 
which depend on principles quite foreign to their belief 
will be applied to them, in the absence of proof of some 
contrary usage (u). Among the Ooriya Rajahs of Ganjam, 
who are Kshatriyas, the exequial rites are always perform- 
ed by a Brahman official, who is permanently attached to 
the family, and who is called the son-Brahman (r). Yet 
these Rajahs invariably adopt, as might be expected, 
where an old feudality has to be maintained. In Jaflfna, 
the Tamil people adopt both boys and girls, and so little 
is there any idea of a new birth into the family, that the 
adopted son can marry a natural-born daughter of the 
adopting parents ; and, where both a boy and girl are 
adopted, they can intermarry {w). The secular character 

Punjab Cttit., 7B— «3. 

Sheo Singh v. Mt. Dakho, 6 N.-W. P., 882, 892, affd. 6 I. A., bl ; 8. C, 
I., 688; Bhala Nahana v. Parbhu, 2 Bom., 67. 
lu) Amava v. Mahadganda, 22 Bom., 416, p. 422. 

{v) This usage wa8 frequently proved in oases in which I was counsel. For 
instance, in the case of the Seerghur succession, and that of the Chinna Kimedy 



« Pi 

it) Si 

1 All., ( 



taluq (fanimirazu v. PaniinUy 6 Mad. H. C, 801 ; Baghanadha v. BroMo- 
kUhorOy 8 I. A., 154 ; 8. C, I Mad., 69 ; S. C. 25 Suth., 291 ), but the custom haa 
not been noticed in either of the reports. It was fully set out in the evidence. 
It is stated in a more recent case, 11 Mad., 289. {w) Thesawaleme, ii., § 4. 



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PABA. 107.] NON-BBAHMAKICAL RACES. 



186 



VI- I 



of the transaction is even more forcibly shown by the 
circumstance that the person who makes the adoption 
must obtain the consent of his heirs. If they withhold 
it, their rights of inheritance will be unaffected (x). 
These facts appear to be of much weight in support of 
the suggestion I have already made (S 10), that the spiri- 
tual theory is not the sole object of an adoption, even upon 
Brahmanical prmciples, and that it can only be applied 
with the greatest possible caution in the case of non- Aryan 
tribes, or such as dissent from orthodox Hinduism (y). 

§ 107. The whole Sanskrit law of adoption is evolved Early 
from two texts and a metaphor. The metaphor (if it is 
not itselC a mis-translation) is that of (^^aunaka, that the boy 
to be adopted must be ** the reflection of a son " (§ 105, 
note (h) ). The texts are those of Manu and Vasishtha. 

Manu says (z) : ** He whom his father or mother gives 
to another as his son, provided that the donee have no 
issue, if the boy be of the same class, and affectionately 
disposed, is considered as a son given, the gift being 
confirmed by pouring water. " 

Vasishtha says (a) : " A son formed of seminal fluids 
and of blood, proceeds from his father and mother as an 
effect from its cause. Both parents have power to sell, or 
to desert him. But let no man give, or accept, an only 
son, since he must remain to raise up a progeny for the 
obsequies of ancestors. Nor let a woman give, or accept, 
a son, unless with the assent of her lord. He who means 
to adopt a son must assemble his kinsmen, give humble 

(«) Ibid., ii., $ 1, 6, b ; see poat ^ 121), note. 

(t/) Where the family, being non- Hindu by origin, has adopted Hinduism in 
part, though not entirely, the onus lies on those who set up an adoption to show 
that this part of the Hindu law has been incorporated in the lamily usage. 
Where a family is governed by Hindu law, it may be possible to moke out a 
usage forbidding adoption. It is evident, however, that it would be very diffi- 
cult to establish a negative usage of such a nature. Fanindra Deb v. Bajeawar 
Da$, 12 I. A., 72; 8. C, 11 Cal., 463. 

(m) Maun, ix., 1 168. 

(a) zv., 1 — 8 ; 8 Dig., 242. The passage from the Grihyasutra of Baudhayana, 
translated by Dr. Btihler in the Journal As. Soc. Bengal, 1S66, art. Gav/naka 
Smriti, is almost word for word the same, but contains no limitation as to relation- 
ship of olase. See also the passage from ^unaka on Adoption, translated in the 
same article, which is alto given V. May., iv., 6, § 8. 



L»*-f . 



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186 LAW OP ADOPTION. [CHAP. V. 

notice to the king and then having made an oblation to 
fire with words from the Veda, in the midst of his 
dwelling-house, he may receive, as his son by ado]ption, a 
boy nearly allied to him, or (on failure of such) even one 
remotely allied. But if doubt arise, let him treat the 
remote kinsman as a Sudra. The class ought to be 
known, for through one son the adopter rescues many 
ancestors. ** 

These texts only apply to the Dattaka form. The 
Kritrima, which prevails in Mithila, but nowhere else, 
will be treated of subsequently. From this small 
beginning a body of law has been developed, which wilf 
be considered under the following heads : — First, who 
may take in adoption ; Second, who may give in 
adoption (§ 131) ; Third, who may be adopted (§ 136) ; 
Fourth, the ceremonies necessary to an adoption (§ 160) ; 
Fifth, the evidence of adoption (§ 157) ; Sixth, the 
results of adoption (§ 164). 

Adopter mQBt be § 108. FiRST, Who MAY ADOPT. — An adoption may 
without lamxe. either be made by the man himself, or by his widow on 
his behalf. But in either case it is a condition precedent 
that he should be without issue at the time of 
adoption (b). Issue is taken in the wide sense peculiar 
to the term in Hindu law, as including three direc t 
descents in the male line. Accordingly, if a man has a 
son, grandson, or great-grandson actually alive, he is 
precluded from adopting. Because any one of such 
persons is his immediate heir, and is capable of perform- 
ing his funeral rites with full efl&cacy (c). But the 
existence of a great-great-grandson, or of a daughter's 
Only one 8on at SOU is no bar to an adoption (d). Still less the previous 
existence of issue who are now dead (e). Nanda Pandita 

(&) The same role prevailed as regards adoption hoth in Greece and Rome. 
It is sinji^alar that the earliest instance of adoption is that in the Rigyeda, where 
Visvamitra, who had at the time a hundred Hying sons, adopted Bnnahsepa. 
v. N. Mandlik. 464. 

(o) Dattaka Mimamsa, i., § IS; Dattaka Chandrika, i., § 6. 

(d) F. MacN., 149; 1 W. MacN., 66, note. 

(e) Cankha. Dattaka Mimamsa, i., § 4; Dattaka Chandrikd, i., § 4. 



a time. 



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PARAS. 108 & 109.] PERSON WHO MAY ADOPT. 137 

in discussing this subject suggests, upon the authority of a 
legend in the Purana, that an adoption might be valid even 
during the life of a natural-born son, if made with the 
consent of the latter ; and in Bengal the validity of such 
an adoption has been maintained, and also that of two 
successive adoptions, the latter of which was made while 
the son first adopted was still alive (/). But the contrary 
rule is now established ; and it is settled that a man cannot 
have two adopted sons at the same time, though of course 
he may adopt as often as he likes if, at the time of each 
successive adoption, he is without issue (g). On the same 
principle, the simultaneous adoption of two or more sons 
is invalid as to all (h). And where an adoption is invalid 
by reason of the concurrent existence of a son, natural or 
adopted, the death of the latter will not give validity to a 
transaction which was an absolute nullity from the first (i). 
It is suggested by Mr. Sutherland and assented to by Mr. 
MacNaghten, that if the son, natural or adopted, became 
an outcast, and therefore unable to perform the necessary 
funeral rites, an adoption would be lawful ; and a practice 
to that effect is stated to exist in Bombay (ft). But since 
Act XXI of 1850 a son would not forfeit any legal right 
by loss of caste. Therefore an adopted son could not, by 
virtue of his adoption, step into his place on the ground 
that he had lost his caste. If the question were to arise, 
it is possible the Courts would refuse to recognize an 
adoption which could confer no civil rights. The question 
might, however, become of importance on the death of 
the natural son without issue. 

§ 109. It has been suggested that an adoption by a Bachelor or 

widoweTf 

(/) Mt. Solukna v. Hamdolal, 1 8. 0., 324 (434) ; Goureepershad v. Mt. 
Jynuday 2 S. D., 186 (174) ; Steele, 45, 188. 

(g) Bungama v. AteTiama, 4 M. I. A., 1; S. C, 7 Snth. (P. C), 57; Mohesh 
Narain v. Taruek Nath, QO I. A., 30 ; S. C, 90 Cal., 487. Bufr an adoptioa 
will not be invalid because it is made in breach of an agreement to adopt another 
peraon, where saoh agreement has not been carried ont. 2 Stra. H. L., 115. 

(h) Akhoy Chwnder v. Kalapar Haji, 12 I. A., 198; S. C, 12 Cal., 406; 
Doorga Sundari v. Surendra Keshav, 12 Cal., 686 ; Surendra Keihav v. 
Doorga SundaH, 19 I. A., 108; S.O., 19 Cal., 518. 

(•) Basoo ▼. Bnaoo, Sffad. Dec. of 1856, 20. 

(k) 2 W. MacN., 200 ; Steele, 42. 181. 



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138 LAW OP ADOPTION. [cHAP. V^ 

bachelor, or a widower, would be invalid, either on the 
ground that such a person was not in the order of gri- 
hastha (house-holder or married man), or that the right of 
adoption was only allowed where the legitimate mode of 
procreation had failed. But it may now be taken as settled 
in British India that an adoption, in either of the above 
cases, would be valid (Z). In Pondicherry a Brahman 
bachelor is considered to be incapable of adopting (m). 
In one case the Madras Sudder Court held that an 
adoption was illegal which had been effected during the 
PregDancy. pregnancy of the adopter's wife ; not on the ground that 
she afterwards produced a son, which it does not appear 
that she did, but because it was ** of the essence of the 
power to adopt that the party adopting should be hopeless 
of having issue" (n). This principle, if sound, would 
preclude a man ever adopting until extreme old age, or 
until he was on his death-bed. It is also opposed to the 
rules which provide for the case of a son born after an 
adoption (§ 168). Accordingly, in a later case (1881), 
where an adoption had been held invalid on the ground 
that the wife was at the time pregnant, and known to be 
so by her husband, the Court, after an examination of the 
above decision, over-ruled it, and held the adoption to be 
valid. They pointed out that the logical result of such a 
rule would be to suspend an adoption during the preg- 
nancy, not only of the adopter's wife, but also of the 
wives of his sons and grandsons, since the existence of 
issue, in the most extended sense of the word, is a bar to 
an adoption (o). 

Adoption bydie. 5 HO. Where a person is disqualified from inheriting 
qiuHAed heir, by any personal disability, such as blindness, impotence, 

(Z) Suth. Syn.. 664, 671 ; 8 Dig., 262; 1 W. MocN., 66; 2 W. MacN., 176; 
Ounnappa v. Sankappa, Bom. Sel. Kad., 202; Naganva y. Subba S<utryy 
2 Mad. H. C, 867 ; ChandvaseJcharudu v. Bramkannay 4 Mad. H. C. 270 ; Gopal 
Anant ▼. Narayan OanMh, 12 Bom., 829 ; per Mahmood, J., 12 All., 862. 

(m) Sorg H. L., 121, Go. Con., 876. 

(n) Narayana v. Vedachala, Mad. Dec. of 1860, 97 ; see Steele, 48. 

(o) Ntigmbhuthanam v. Seshamma^ 8 Mad., IbO; ace. Hanmant Ram- 
Chandra ▼ Bhimacharyat 12 Bom., 106. 



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PARA. 110.] PERSON WHO MAY AJX)PT. 189 

leprosy, or the like, a son whom he may adopt can have f 
no higher rights than himself, and would be entitled to I 
maintenance only (p). Mr. Sutherland was of opinion ' 
that the adoption itself would be valid, in which case, of 
course, the adopted son would succeed to the self-acquired 
or separate property of his adoptive father (q). On the 
other hand, in two cases which Mr. MacNaghten cites 
with approbation, the Bengal pundits held that the capa- 
city of a leper to adopt depended upon his having perform- 
ed the necessary expiation. When he had done so the 
adoption was valid. When he had not done so, or where 
the disease was such as to be inexpiable, the adoption was 
invalid (r). This opinion rested on the ground that until 
expiation he was unable to perform the necessary religious 
ceremonies. Accordingly, the Bengal High Court decided 
that an adoption was invalid when effected by a widow 
who was living in concubinage, as this made her unfit to 
take part in any religious ceremony (s). In Bombay it 
was contended that an adoption by a widow was invalid, 
as she had not undergone tonsure, and was therefore 
impure. It appeared, however, that she had made certain 
expiatory gifts, which the Shastras, on being consulted 
previous to the adoption, had pronounced sufficient. The 
Court refused to allow their opinion to be questioned. In 
a later case, where no such expiation was proved, the 
Court treated the obstruction as a mere matter of religious 
ceremony, which was not of the essence of the adop- 
tion {t). In a case before the Privy Council it was argued, 
and seems to have been assumed, that an adoption would 
have been invalid, if it had been made while the adopter 

(p) Daitaka Chandrika, vi., § 81 ; Sevachetumbara v. ParaniLcty^ Mad. Dec. 
of 1857, 210. This incapacity is not recognised by the Castom of Pondicherry, 
Sorg H. L., LOO, Co. Con., 875. In the Pnnjab a mau who is blind, impotent, or 
lame can adopt, though the Brahmans deny the right of one who was always 
impotent. Punjab Costomary Law, 11, 154. 

(q) Suth. Syn.. 664, 671. 

(r) 2 W. MacN., 201, aoc. ; Mitakshara, ii.. 10, § 11 ; Mohunt Bhagavan y. 
Mohunt Boghunundun, 22 I. A., 94 ; S. C, 22 Cal., 843. 

(a) Sayamalal v. Savdamini, 5 B. L. R., 362. 

(t) Bavji Vinayakra v. Lakihmibait 11 Bom., 881, 892 ; LakMhmibair. Bam- 
ehandra^ 22 Bom., 590 ; W. & B., 99a 



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140 LAW OP ADOPTION. [CHAP. V, 

was still in a state of pollution {u). No decision was 
given upon the point, as the facts which would have 
raised it were negatived. When the case arises it will 
require a previous determination of the question, What 
religious ceremonies are necessary to an adoption, and 
who must take part in them ? (v). This was the distinc- 
tion which formed the ratio decidendi in two cases, in one 
of which a Sudra leper was held entitled to adopt, as among 
Sudras no religious ceremonies are required for adop- 
tion (w). In the other a Hindu father who had become a 
convert to Muhammedanism gave his son, who had re- 
mained a Hindu, in adoption. In this case the father 
exercised the right of giving by virtue of his authority as 
guardian, but delegated to the uncle of the boy the func- 
tion of handing him over. The Court doubted whether 
this could have been done if the parties were Brahmans, 
so that datta homam would be essential (x). 

Adoption by § 111. The law as to the capacity of a minor to adopt, 

or to authorise an adoption, seems also unsettled. The 
various Acts which constitute a Court of Wards all con- 
tain provisions forbidding a disqualified landholder to 
adopt without the consent of the Court (y). It has been 
held that these provisions do not apply at all unless actual 
possession has been taken by the Courts of Wards ; but 
that where they do apply, they equally forbid the giving 
of an authority to adopt, and that an adoption made in 
violation of them is absolutely invalid (z). Under Act 

(u) BamcUinga v. Sadastva, 9 M. I. A., 606 ; S.C., 1 Suth. (P. C), 26. 

\v) See as to this, post § 162, 168, and ae to the groands upon which dis- 
ability to inheritance arises, post chap. xix. 

Iw) Sourindra Mohun v. Siromoniy 28 Cal., 171. 

Ix) Sha/msing t. Santdbai, 26 Bom., 661. 

ly) Beng. Reg. X of 1793, s. 38 ; LII of 1803, s. 87 (N.-W. P.) ; Mad. Reg. V 
of 1804, 8. 26 ; Act XXXV of 1868, s. 74 ; Act TV of 1870, s. 74 (B. C.) ; Act 
IX of 1879 (B.C.), B. 61. This last Act also extends the prohibition to an 
anthority to adopt. 

(£) Juntoona v. Bamaaoonderaif 8 I. A., 72; 1 Cal., 289; Neelkaunt ▼. 
Anundmoyee, S. D. of 1866, 218 ; Anundmayee v. Shsebchunder^ 9 M. I. A., 287 ; 
8. C, 2 Suth. (P. C), 19. But see oer PaiUifex, J., Banee Perahad v. Moonshee 
Syudt 26 Buth., 192, 198. It has been held that the correspouding provision in 



minor. 



8. C, 2 Suth. (P. C), 19. But see ver Pwitifex, J., Bante Pershad v. Moonshes 
Syudt 26 Buth., 192, 198. It has been held that the correspouding provision in 
Biombay, Act II of 1863, s. 6, cl. 2, only applies as between Government and the 
person 
ties for 
2 Bom. 



claiming as adopted son, and cannot be taken advantage of by third par- 
the purpose of invalidating the adoption. Vasudevanant v. BamkrUhnat 
.629. 



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PABA. 111.] PERSON WHO MAY ADOPT. 141 

IX of 1875 (Majority), § 3, minority in the case of Hindus 
now extends to the end of the eighteenth year, unless in 
cases where a guardian has been appointed by a Court of 
Justice, or where the minor is under the jurisdiction of 
the Court of Wards, in which case it lasts till the end of 
the twenty-first year. It has, however, been held in 
Bengal and Bombay that both an actual adoption effected 
by a minor, and an authority to adopt given by him, will 
be valid, provided he has attained years of discretion, and 
this opinion appears to have been approved by the 
Judicial Committee. Mr. Justice Mitter said : " Every 
act done by a minor is not necessarily null and void. 
Those acts only which are prejudicial to his interest can 
be questioned and avoided by him after he reaches his 
majority. But no such prejudicial character can be predi- 
cated of adoption in the case of a childless Hindu, and as 
under the Hindu Shastras a minor who has arrived at the 
age of discretion is not only competent but bound to 
perform the religious ceremonies prescribed for his salva- 
tion, we cannot hold the adoption made in this case to be 
invahd, merely because the adoptive father was in the eye 
of the law a minor " (a). The judgment does not state 
when a Hindu arrives at years of discretion ; whether the Age of cUscre- 
period is a fixed one, or whether it depends upon the**^* 
special capacity of each individual. In general, the Hindu 
law-books speak of the age of discretion and majority as 
convertible terms, and treat each period as being attained 
at the sixteenth year. But a further sub-division is stat- 
ed, viz.f infancy to the end of the fourth year, boyhood to 
the end of the ninth, and adolescence to the end of the 
fifteenth. This distinction, according to Jagannatha, 
regards penance, expiation, and the like. An opinion is 
also mentioned by him that the period of legal capacity 
may be determined with reference to the degree in which 

(a) Rajendro NareUn v. Saroda^ 16 Sufeh., 648; Patel Vandravan JekUan v. 
ManUali 15 Bom., 666 ; per curia/my Jumoona v. Banuuoonderait b I. A.., 88 ; 
8. C, 1 Cftl., 389; Mt. Pearee ▼. Mt. Hurbunaee, 19 Suth., 127; V. Darp., 770, 
where oonflicting opinions are cited. 



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^^ 



142 



LAW OP ADOPTION. 



[chap. V, 



Adoption by 
wife. 



Adoption by 
widow. 



Mithila. 



Bengal. 



a youth has actually become conversant with affairs (i). 
It may be that Mr. Justice Mitter meant that an adoption 
would be valid if effected by a boy between the ages of 
ten and sixteen, who was shown to be capable of under- 
standing the nature of his act (c). The actual decision 
appears to have been as to an authority to adopt given by 
the minor. Of course he could not authorise an adoption 
which he could not effect. The converse of the proposition 
does not seem necessarily to follow. An act done might 
be valid, though an authority to do it might be invalid. 

§ 112. As an adoption is made solely to the husband 
and for his benefit, he is competent to effect it without his 
wife's assent, and notwithstanding her dissent (d). For 
the same reason, she can adopt to no one but her husband. 
An adoption made to herself, except where the Kritrima 
lorm is allowed, would be wholly invalid (6). Nor ca n 
she ever adopt to her husband during his lifetim e, except 
with his assent (/). Her capacity to adopt to him, after 
his death, whether with or without his assent, is a point 
which has given rise to four different opinions, each of 
which is settled to be law in the province where it prevails. 
"All the schools accept as authoritative the text of 
Vasishtha, which says, * Nor let a woman give or accep t a 
son unless with the assent of h e r lord ' (§ 107). But the 
Mithila school apparently takes this to mean that the 
assent of the husband must be given at the time of the 
adoption, and therefore that a widow cannot receive a son 
in adoption, according to the dattaka form, at all (g). 
The Bengal school interprets the text as requiring an 

(6) 1 Dig., 291—293; 2 Dig., 116—117; Mitakihara on Loans, cited V. 
Dark., 770. 

(c) Act IX of 1875 (Majority) does not settle the point, as s. 2 provides that 
the Act is not to affect any person in the matter of adoption. 

(d) Dattaka Mimamsa, i., § 22; Bungama y.Atchama^ 4 M. I. A., 2; 8. C, 
7 8uth. (F. C), 57. 

(«) Chowdry Padum ▼. Koer Oodey, 12 M. I. A., 366; 8. C. 12 Suth. (P. C), 1 ; 
8. C, 2 B. L. R. rP. C). 101. Adoptions by women of the dancing-girl caste 
rest on a different footing, see post § 199. 

(/) Dattaka Mimamsa, i., § 27. 

(^) Dattaka Mimamsa, i., § 16; Vivada Chintamani, 74 ; 1 W. MaoN., 96, 100; 
Jot Bmm V. Mtiaan Dhami^ 5 8. D., 8. 



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PARA. 112.] ADOPTION BY WnX)W. 148 

express permission given by the husband in his lifetime, 
but capable of taking effect after his death (h) ; whilst the 
Mayukha, Eaostubha, and other treatises which govern 
the Mahratta school, explain the text away by saying, Mfthroto. 
^* that it applies only to an adoption made in the husband's ""^ 
lifetime, and is not to be taken to restrict the widow's 
power to do that which the general law prescribes as 
bene6cial to her husband's soul "(i). The same interpre- 
tation is put upon the text by the Nambudry Brahmans 
of the West Coast (§ 45) with the same result (k). A 
fourth and intermediate view was established by the 
Judicial Committee in the case from which this quotation 
is taken, viz., that in Southern India the want of the Sonthem indi>. 
husband's assent may be supplied by that of his sapindas., 
The doctrineof the Benares school, as itprevails in Northern BaiiMM. 
India, appears to be the same as that of Bengal, as to the ^ 
necessity for the husband's assent ; though upon this 
point a greater difference of opinion has prevailed, from 
the circumstance that the Viramitrodaya, which allows 
the assent of the kinsmen to be sufficient, is an authority 
in that province (1). The result is that, in the case of an 
adoption by a widow, in Mitliila, no consent is sufficient ; 
in Western India no consent is required ; in Bengal and 
Benares the husband's assent is required ; in Southern 
India the consent either of the husband or of the sapindas is 
sufficient. The cases of Western and Southern India alone 
require any further discussion. Before examining them, 
it will be well to dispose of the other matters relating to 
an adoption by a widow upon which the law is uniform. 

(h) 1 W. MftcN., 91, 100 ; 2 W. MacN., 175, 182, 183 ; Janki Diheh v. Suda 
Sheo, 1 S. D., 197 (262) ; Mt. Tara Munee v. Dev. Naraytm, 8 S. D., 887 (516). 

(t) Per curiam, Collector of Madura t. Mootoo Bamalinga, 12 M. I. A., 485 ; 
8. C, 1 B. L. R. (P. C), 1 ; S. C, 10 Snth. (P. C), 17; V. N. Mandlilc, 463 

(k) 11 Mad., 167, 178, 187. A similar oastom has been deoideo. to exist in 
various sects of the Jains. Hamabk v. Mandil, 27 C^al., 879. 

{I) Vinmit., ii., 2, 8 8; 1 W. MacN., 91, 100 ; 2 W. MacN., 189 ; ShuTmherey. 
DOrajy 2 S. D., 169 (216) ; Haiman v. Koamar, 2 Kn., 203 ; Chowdry Padum 
Singh r. Oodey Singh, 12 M. X. A., 360; per curiam, OoUector of Madura v. 
Mootoo BametUnga, 12 M. I. A., 440 ; S. C. in Court below, 2 Mad. H. C, 216; 
S Htra. H. L., 92 ; TuUhi Bam v. Behari Lai, 12 All. (F. B.), 828, where it was 
also held thai the want of proper authoriW could not be ouied on the principle 
(A factum valet. Semhle, Lcua Pa/rbhu Lai r. MyVne, 14 Cal., 401—416. 



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144 LAW OP ADOPTION. [cHAP. V, 

Mt^t*' § 113. No particular form of authority is required. It 

may be given in writing or in words (m), or by will (n). 
It may also be conditional ; that is, an authority to adopt 
upon the happening of a particular event, provided an 
adoption made when the event happened would be legal. 
For instance, an authority to a widow to adopt, in the 
event of a disagreement between herself and a surviving 
son, would be invalid, because the father himself could 
not adopt so long as the son lived (o). But an authority 
to adopt in the event of the death of a son then living 
would be good, and so it would be if the authority were to 
adopt several sons in succession, provided one was not to 
be adopted till the other was dead (p). 

Must be Birictiy § 114. The authority given must be strictly pursued, 
foUowed. g^jjj ^j^jj neither be varied from nor extended (q). If the 

widow is directed to adopt a particular boy, she cannot 
adopt any other, even though he should be unattainable. 
If she is directed to adopt a son, her authority is exhausted 
as soon as she has made a single adoption ; and she cannot 
adopt a second time, even on the failure of the son first 
adopted (r). In Madras, however, where want of authority 
by a husband can be supplied by the assent of sapindas, it 
has been held that where the husband's will authorised the 
widow to make an adoption, which she made, and on the 
death of the adopted son she made another adoption with 
the consent of the sapindas, the latter adoption was also 



(m) Fatwah, 1 Mad. Dec., 104 ; percuriam^ Soondur Koomaree y. OucUulhur, 
M. I. A., 64 ; S. C, 4 Suth. (P. C), 116. 

(n) Saroda v. Tincoiory, 1 Hyde, 223. 

(o) Mt. Solukna v. Bamdolal, 1 S. D., 824 (484) ; Gopee LaU y.Mt. Chund- 
rtiolee, 19 Suth., 12 (a Priyy Council case). 

(p) Shamchunder V. Narayni, 2 S. D., 209 (279); Bhoohun Moyee v. Ram 
Kishore, 10 M. I. A., 279 ; S. C., 8 Suth. (P. C), 16 ; Jumoona v. Bamatoonderai, 
3 I. A., 72 ; S. C, 1 Cal., 2b9 ; Vellankt v. Venkata Bafna (Guntur cage), 4 1. A., 
1 ; 8. C, 1 Mad., 174 ; S. C, 26 Suth., 21. 

iq) Even though the act directed will be illegal when done, as for instance, 
that two widows should simultaneously adopt two boys. Surendra Keshav y. 
Doorgoaundari, 19 I. A.. 108, p. 122 ; 8. C, 19 Cal., 618. 

(r) Per curianiy Chowdry Padum v. Koer Oodey, 12 M. I. A., 866 ; S. C, 12 
Suth. (P. C), ; 1 P. MacN., 166, 176 ; 1 W. MacN., 89, dub. ; Purmanund y , 
Oomakunt, 4 8. D., 818 (404) ; Goumath r. Amapooma, 8. D, of 1862. 832; 
Amirthayyan v. Ketharamayyan, 14 Mad., 66 ; but see contra, Suryanarayana 
V. Venkataramana, 26 Mad., 681. 



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PARAS. 113 & 114.] ADOPTION BY WIDOW. 145 

valid. It would have been different if a second adoption 
had been forbidden by the husband (s). Where a man 
died.leaving his wife pregnant,and authorised her to adopt, 
in case the son to be born should die, and she had a daughter, 
it was held she could not adopt {t). And so it was decided 
that a direction to a widow to adopt a boy along with a 
living son, which was illegal and could not be carried out, 
did not authorise her to adopt after the death of that son (u). 
But an authority to adopt generally authorises the 
adoption of any person whose affiliation would be legal (v). 
A direction by a testator that his widow should adopt a 
son ** with the good advice and opinion of the manager,'* 
whom he had appointed as a sort of agent, was held only 
as a direction,and that an adoption made without consulting 
him was valid {w) ; on the other hand an authority to adopt 
given by a testator to his wife and executors,being bad as to 
the executors was held to be incapable of execution by the 
widow, the entire authority being single and indivisible(ir). 

In one case decided at Madras, the authority to the Case of lyah 
widow was contained in the following words of her ' ^* 
husband's will : — " If lyah Pillav beget a son, beside his 
present son, you are to keep him to my lineage." At the 
testator's death, lyah Pillay had no second son. Sir 
Thomas Strange decided that the widow was not bound 
to wait indefinitely, and he affirmed the validity of the 
adoption by her of another boy (y). This decision is can- 
vassed with much vigour by the author of Considerations 
on Hindu Law (z), who argues that the authority was 
specific ; that under it no one could be adopted but a son 
of lyah Pillay; that the widow was bound to wait till 
after possibility was extinct of further issue by him, and 

(•) Par<uara Bhattar v. Hangaroja, 2 Mad., 202. 
(t) Mohejidro Lall v. Rookinnyt 1 Coryton, 42; cited V. Darp., 814. 
(u) Jojfchundro v. Bhyruh, S. D. of 1849, 41. 
\v) 1 Mad. Dec; 105. 

(tt>) Snretuira Nandan v. Sailaja Kant, 18 Cal., 386. 

(«) AmrUoLaU Duti v. Sumomoyee, 24 Cal.,689 ; 25 Oal , 662 ; 27 1. A., 128 ; 
8.C.,27C«1..996. 
[y) Veerapermall v. Narain PiUay, 1 N. C, 91. («) F. MacN.. 197. 

10 



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146 LAW OF ADOPTION. [CHAP. V, 

then that the authority would lapse, from the failure of 
any object upon whom it could be exercised. Sir Thomas 
Strange, however, construed the document as evidencing 
a primary desire to be represented by an adopted son, 
coupled with a subsidiary desire that that son should have 
been begotten by lyah Pillay. In this construction he is 
supported by Bombay authorities. " It is common for a 
husband authorising an adoption to specify the child he 
wishes to be taken. Should that child die, or be refused 
by his parents, the authority will be held, at least in 
Bombay, to warrant the adoption of another child, unless, 
indeed, he said, * such a child and no other.* The 
presumption is that he desired an adoption and by 
specif jring the object merely indicated a preference'* (a). 

When power of § 115. Another limitation to the right of adoption has 
oaSwSc^ft- ^®^ 1*^^ down by the Privy Council, in some cases 
hie of being J which decide that a widow cannot adopt to her deceased 

exeroiaed. | ^ . . 

husband where he has left a son, who has himself died, 
leaving an heir to his estate. The first case, in which 
this point arose, was that of Bhoobun Moyee v. Bam 
Kishore Achari (6). There Gour Kishore died leaving a 
son, Bhowahi, and a widow, Chundrabullee, to whom he 
gave an express authority to adopt in the event of his 
son's death. Bhowani married, attained his majority, and 
died, leaving a widow, but no issue. Chundrabullee then 
adopted a son. Ram Kishore, who sued Bhowani's widow 
to recover the estate. The Privj' Council held that her 
estate could not be divested by the subsequent adoption. 
Lord Kingsdown, however, went on to say " that at the 
time when Chundrabullee professed to exercise it the 
power was incapable of execution." Their Lordships 
admitted that Gour Kishore had fixed no limits to the 
period during which his power might be acted on by his 
widow, but they said, '' it is plain that some limits must 

(a) W. & B., 966, followed ; Lakthmibai v. Bajaji, 22 Bom., 996. 
(6) 10 M. I. A., 279 ; S. C, 8 Sath. (P. C). 15. See Ihis case referred to on 
another point, § 186. 



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PARA. 115.] ADOPTION BY WIDOW. 147 

be assigned. It might well have been that Bhowani had 
left a son, natural born or adopted, and that such son 
had died himself, leaving a son, and that such son had 
attained his majority in the lifetime of Chundrabullee. 
It could hardly have been intended that, after the lapse of 
several successive heirs, a son should be adopted to the 
great-grandfather of the last taker, when all the spiritual 
purposes of a son, according to the largest construction of 
them, would have been satisfied. But whatever may be 
the intention, would the law allow it to be effected ? We 
rather understand the Judges below to have been of 
opinion that, if Bhowani Kishore had left a son, or if a 
son had been lawfully adopted to him by his wife under a 
power legally conferred upon her, the power of adoption 
given to Chundrabullee would have been at an end. But 
it is difficult to see what reasons could be assigned for such 
a result which would not equally apply to the case before 
us." The same question arose again after the deaths of 
Bhowani's widow and of Chundrabullee. Ram Kishore 
got into possession of the property left by Gour Kishore 
and Bhowani. He was sued for its recovery by a more 
distant relation. It was admitted that he was entitled to 
hold it, if his adoption was valid, and the High Court of 
Bengal decided in his favour (c). They limited the effect 
of the Privy Council judgment to that which it had 
actually decided, viz., that the plaintiff in the suit had no 
right to the property which he claimed. This decision, 
however, was in its turn reversed by the Judicial Com- 
mittee (d). They said : " the substitution of a new heir for 
the widow was no doubt the question to be decided, and 
such substitution might have been disallowed, the adop- 
tion being held valid for all other purposes, which is 
the view the Lower Courts have taken of the judg- 
ment, but their Lordships do not think that this was 
intended. They consider the decision to be that, upon 

ie) Puddo Kumaree y. Juggut Kiahore, 6 Ca]., 616. 
(a) Pudma Coomari t. Court of Wa/rd8, 8 1. A., 229. 



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148 LAW OF ADOPTION. [CHAP. V, 

the vesting of the estate in the widow of Bhowani, the 
power of adoption was at an end, and incapable of execu- 
tion and if the question had come before them without any 
previous decision upon it they would have been of that 
opinion. *' Both these cases were again considered and 
followed in a subsequent case from Madras (e), when the 
facts were exactly similar, except that the widow acted 
upon an authority from her husband's sapindas, given 
after the death of the natural born son, but during the life 
of his widow. After her death the distant collaterals sued 
for, and obtained a declaration that the adoption was 
wholly invalid, and could not stand in the way of their 
reversionary rights. Of course the same doctrine would 
apply d fortiori as against the independent right of a 
widow in Bombay to adopt to her late husband (/). 
Fnrihar conai- § 116. The applicability of this doctrine to cases differ-* 
dOTfctionoftho jjjg jjj their facts has been considered in later cases 
in Bengal and Bombay. In the first {g) a husband had 
left his widow authority to adopt five sons in succession. 
She adopted Kristo Churn who died twelve years after 
his adoption, apparently unmarried. She then adopted 
another boy, whose right to succeed to the husband's pro- 
perty was disputed by a collateral relation of the husband. 
Before the High Court, the only point raised was that 
under the decision in Bhoobun Moyee's case (A) the power 
to the widow to make a second adoption was incapable of 
execution, inasmuch as Eristo Churn had lived long 
enough to perform all acts of spiritual benefit for the 
deceased, and it must be assumed he had performed them. 
The High Court found that the second adoption was valid. 
They said that '' an adopted ^n attaining an age of 
sufficient maturity, and performing the religious services 
enjoined by the Shastras cannot exhaust the whole of the 
spiritual benefit which a son is capable of conferring upon 

(0) Thayammal y. Venkatrama^ 14 I. A., 67 ; S. C, 10 Mad., 205 ; Tarachum 
V. Suresh Chunder, 16 1. A., 166; S. C, 17 Cal.. 122. 

(/) See W. & B., 987-991. Itamji v. Qraman, 6 Bom., 498 ; Ke$hav Bam- 
krUtna v. Oovind Ganetk, 9 Bom., 94. 

(^) Bam Soondar v. Surbanee Douee, 22 Snth., 121. {h) Ante $ 115. 



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PABA. 116.] ADOPTION BY WIDOW. 149 

the soul of his deceased father. Because these services 
are enjoined to be repeated at certain stated intervals, and 
the performance of them on each successive occasion 
secures fresh spiritual benefit to the soul of the deceased 
father.'* As regards Bhoobun Moyee's case, they proceed- 
ed to state their opinion that the Privy Council had not 
meant to hold that the power was incapable of execution 
for all purposes, but only for the purpose of divesting the 
widow of Bhowani Kishore of her proprietary rights. 
This view can no longer be maintained after the more 
recent decisions of the Judicial Committee. But the case 
before the High Court diflfered from the three cases in the 
Privy Council which followed and explained Bhoobun * 
Moyee's case (i), in this respect that, on the death of 
Kristo Churn, the estate vested in no one as his heir, 
other than the widow who exercised the power of adop- 
tion. In this respect, the case may well stand along 
with the four already discussed. In fact, it comes within 
the express words of Lord Kingsdown, when he said (k) — 
** If Bhowani Kishore had died unmarried, his mother, 
Chundrabullee Debia, would have been his heir, and the 
question of adoption would have stood on quite different 
grounds. By exercising the power of adoption she would 
have divested no estate but her own, and this would 
have brought the case within the ordinary rule. '* This 
language was adopted by the Judicial Committee in a 
similar case (I) and was acted on by the Bombay Court, 
where after the death of a son, who was succeeded by the 
widow as his mother, she made an adoption, and so did 
her mother-in-law. The adoption by the mother-in-law 
was held invalid as it would have divested the right of the 
mother. That of the mother was held good, as it devested 
no right but her own (m). Where, however, a man had 

(t) 8 I. A., 229; U I. A., 67; 16 I. A.. 166. {k) 10 M.I. A., p. 311. 

{I) Vellanki Venkata v. Venkata Rama, 4 I. A., 1, p. 9, and see Veraohai v. 
Bai Hiraba, 30 I. A., 284 ; S. C, 27 Bora., 492. 

(m) Gaviappa v. Girimallaypa^ 19 Bora., 333 ; Payappav. Appanna^ 23 Bom., 
327, p. 381 ; Venkappa v. Jivaji, 26 Bom., 306. See, too, Jamnabai v. Bay- 
chandf 7 Bom., 225 ; Ravji Vinayakrav v. Lakshmibai, 11 Bora., 383, p. 397. 



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150 



LAW OF ADOPTION. 



[chap. V, 



Adoption by 
grandmother 
of deceased. 



Adoption by 
minor; 



died leaving a married son, and his own widow, and the 
estate passed first to the son, and on his death to his 
widow, and on her death, the father's widow succeeded as 
heir to her son, it was held that her power of adopting to 
her own husband was gone (n). 

Lord Kingsdown's dictum was the ground of the later 
decision of the Bengal High Court (o). There Jagat Sett 
died in 1865 leaving an adopted son, Gopal Chand, and a 
widow, Pran Kumari. Gopal Chand died in 1868, leaving 
a son Gopi Chand, and he again died unmarried and 
without issue. On his death Pran Kumari, who was his 
heir, adopted Jibun Mull. The plaintiff, a distant collateral 
relation of Gopi Chand, sued for a declaration that he was 
entitled to succeed to the estate on the death of Pran 
Kumari, and that the adoption of Jibun Mull was invalid. 
The High Court appears to have admitted that the adop- 
tion would have been invalid if it had been based upon an 
authority to adopt granted by Jagat Sett. In this case, 
however, the parties were Jains, and by Jain law a widow 
can adopt without authority from her husband (p). They 
held that this distinguished the case from that of Pudma 
Kumari Debi v. The Court of Wards (q) , and brought it 
within the dictum of Lord Kingsdown above quoted. 
But, although a Jain widow can adopt without any 
authority from her husband, it is difficult to suppose that 
she can do what her husband could not have authorised 
her to do. Both in Madras and Bombay a widow is 
precluded irom adoption where a prohibition from her 
husband can be proved or inferred (r). Can she be in a 
better position, where the law would have prohibited her 
to act upon his directions, if they had been given ? (s). 

§ 117. A widow who is duly authorised by her husband, 
may adopt while she is a minor, because the act is her 

(n) Krithnarav y. Shankarrav^ 17 Bom., 164,/oi/d. ; Bamkrishna v. Sham- 
ruo, 26Bom.,626. 



(o) Manich Chand v. Jagat Settani, 17 Cal., 518. p. 686. 



PoH $ 131 
(r) 12 M. 1. A., p. U9,po8t S 122 and $ ISO. 
($) Ace. KrUhnarav v. Shankarrav^ 17 Bom 



{q) 81. A., 



164. 



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PARAS. 117 & 118.] ADOPTION BY WIDOW. 161 

husband's, and she is only the instrument (^). I presume 
the same rule would apply in cases where an authority by 
his sapindas is requisite, and is given. In Western India 
it is stated that a widow under the age of puberty cannot 
adopt (u), I suppose the reason for the difference is that 
there the adoption is the act of the widow, for which no 
authority, or consent, is required. 

An unchaste widow cannot adopt even with the express or unchaste 
authority of her husband, because her dissolute life entails ^* ^^' 
a degradation which renders her unable to perform the 
necessary ceremonies. This incapacity may, it is said, be 
removed by performing the penances proper for expiation. 
But these cannot be performed during pregnancy ; there- 
fore, while it lasts, an unchaste widow cannot possibly 
adopt (v). In the case of an adoption by a Vaisya widow, 
under authority from her husband, it seems to have been 
considered by the Madras High Court, though it was not 
necessary to decide the point, that the adoption was bad, 
being made while the corpse was still in house, and the 
widow was therefore in a state of pollution (w). Whether 
this ground of incapacity would apply in the case of Sudras, 
depends upon the question, whether in their case any 
religious ceremonies are necessary (x), 

§ 118. Where there are several widows, if a special Several widows, 
authority has been given to one of them to adopt, she, of 
course, can act upon it without the assent of the others, 
and, I presume, she alone could act upon it (y). If the 
authority has been given to the widows severally, the 
junior may adopt without the consent of the senior, if the 

(0.2 W. MacN., 180; V. Darp., 769; Motukikini tr. Admath, IBCal , 69. In a 
case in Mysore a qneBtion was raised but not decided whether the minor widow 
could repudiate the adoption on coming of age. In the absence of circumstances 
showing %\uA the adoption was bad ab initio I cannot imagine such a repudiation 
possible. Nanammah v. Bamiahf 6 Mysore, 24. 

lu) Steele, 4d W. ^ B., 99b. 

(v) Thukoo V. Buma, 2 Bor., 446, 456 [488] ; Sayamalal v. Saudamini^ 5 
B. L R., 362, approved by Mitter, J., Kery KoUtany v. Moneeram, 18 B. L. R., 
14 ; 8. C ., 19 Sutn., 367. As to the possibility of removing by penance the results 
of unchattity, see p«r MUter, J. ; B. C, 13 B. L. R., 39. 

iw) Banganayakamma v. Alwar Setti^ 13 Mud., p. 222. 

(x) Ah to this, see post § 152. (2^) 2 Stra. H. L., 91. 



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152 



LAW OP ADOPTION. 



[chap. V, 



Widow alone 



oan ado 
husband 



»lfor 



Her disoretion 
absolato. 



latter refuses to adopt (z). In Bombay, it is said, that 
where there are several widows, the elder has the right to 
adopt even without the consent of the junior widow, 
but that the junior widow cannot adopt without the con- 
sent of the elder, unless the latter is leading an irregular 
Ufe, which would wholly incapacitate her (a). This rule, 
however, only applies where both widows are holding 
as heirs of the husband. Jivanrav left two widows, 
Lakshmibai and Kashibai, and died leaving them and a son 
by Kashibai ; on the son's death Kashibai inherited as his 
mother. Lakshmibai then adopted a son to her husband 
without the consent of Kashibai. It was held that her 
adoption was invalid, and semble that it would not have 
been valid even if she had obtained that consent (6). 

§ 119. It is a curious thing, that while the husband's 
right is recognized to delegate to his widow an authority 
to adopt, he can delegate it to no one else, nor can he join 
anyone else with her, as for instance, his executors, as 
joint adopters (c). In cases where the assent of sapindas 
will supply the place of an authority by the husband, 
that assent must be sought for and acted upon by the 
widow. Where no authority is given or required, equally 
the widow alone can perform the act (d). The reason 
probably is, that she is looked upon, not merely as his 
agent, but as the surviving half of himself (e), and, there- 
fore, exercising an independent discretion, which can 
neither be supplied, nor controlled, by anyone else. It 
is no doubt upon the same principle, that an express 
authority, or even direction, by a husband to his widow to 
adopt, is, for all legal purposes, absolutely non-existent 

(z) MondaHni v. Adinathy 18 Cal., 69. 

(o) Steele. 48, 187; W. & B., 977,999; Bakhmabai v. Badhabai, 6 Bom. 
H. C. (A. C. J.), 181. 

(6) AnavdibcU v. Kcuhibai, 28 Bora., 461, see po$t § 195. 

(e) Amrito Lai v. Surnomoyee, 25 Cal., 662, aflfd. 27 I. A., 126 ; S. C, 27 Cal., 
996, e.g.i a direction by a testator to hie son's widow to adopt might justify an 
adoption to the son, but not to the testator. Karaandas v. Ladkavahu, 12 Bom., 
186. 

{d) F.MacN.,202;2Stra.H. L.,94; Veerape^malU- Naraiv Pillay^llH.C., 
108; Bhagvandas v. Bahnal, 10 Bom. H. C, 241. 

(e) See Vrihaspata, 3 Dig., 468. 



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PARA. 119.] ADOPTION BY WIDOW. 163 

until it is acted upon. She cannot be compelled to act 
upon it unless, and until, she chooses to do so (/). If she 
acts upon it, not voluntarily, but under the influence of 
coercion, physical or moral, the adoption is invalid (g). 
And so it has been held in a case where a widow adopted 
in ignorance of the legal effect of her acts in divesting 
her estate (h). The Court will not even recognize the 
authority to the extent of making a declaration as to its 
validity (i). Till she does act, her position is exactly the 
same as it would be, if the authority had never been given. 
If she would be the heir to her husband's estate in the 
absence of a son, she is such heir until she chooses to des- 
cend from that position; and she is in of her own right, and 
not as trustee for any son to be adopted hereafter (Jc). 
It she is not the heir, she can claim no greater right to 
interfere with the management of the estate, or to control 
the persons in possession, than if she had no authority. The 
only mode of giving it effect is to act upon it (Z). If a 
husband directs his widow to adopt a particular boy, or the 
child of a particular father, she is under no obligation to 
submit to any conditions which the latter may attempt to 
impose (m). A question has arisen, but not been decided, 
whether a widow with power to adopt can bind herself not 
to adopt. The Court refused an interim injunction against 
the adoption, but there the matter ended (n). Should the 
case arise again, it might affect the decision to consider the 
nature of the widow's power ; whether she was expressly 
directed by her husband to adopt, or only allowed to do so 
at her own discretion, or whether her husband had been 
wholly silent on the point, and her authority to adopt arose 

(/) Dyamoyee v.IUubeharee, S.D. 0/ 1852, 1013 ; Bamundosav. Mt. Tarinee, 
7 M. I. A., 190; Uma Sunduri v. Sourohineey 7 Cal., 288. 

{a) Bangajvayakamma v. Alwar Setti, 18 Mad., 214, ^20. 

{h) BcLyabai v. Bala, 7 Bom. H. C, Appx. 1. 

(») Mt. Peares v. Mt. Hurhunsee, 19 Suth., 127 ; Sreemutty Rajkoomaree v. 
NobocoomaTj 1 Boal., 187; Sev. 641, note. 

(it) Bamundoss v. Mt. Tartnee, 7 M. I. A., 169, overruling jByawa v. Shaman 
S. D. of 1848. 762. 

{I) Mt. Subudra v. Goluknath, 7 S. D., 143 (166). 

(m) Shamavahoo v. Dwarkadaa, 12 Bom., 202. 

(n) Aaaar Purahotam v. Batanbai, 18 Bom., 66. 



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154 



LAW OF ADOPTION. 



[chap. V, 



No limit of time 



Absence of 

hnsband's 

authority. 



A 



from consent of sapindas, or, in the West Coast, from her 
own independent power. Nor is there any limit to the 
time during which a widow may act upon the authority 
given to her (o). In a Bengal case, an adoption made 
fifteen years after the husband's death was supported ; and 
in Bombay cases, the periods were twenty, twenty-five^ 
fifty-two, and even seventy -one years (p). 

§ 120. Having now seen the effect of an authority to 
adopt when given by the husband, it remains to examine 
the mode in which it may be supplied when wanting . 
This can only be in Southern and Western India and in 
some parts of Northern India (§§ 112, 121, 130). In 
Madras the balance of opinion had always been that, in 
the absence of authority from the husband, the assent of 
sapindas was sufficient . Till lately, however, the pomt 
was certainly open to argument. It has now been 
definitively settled by the judgment of the Privy Council 
in the case of the Ttamnaad Zemindar y, and in several 
other cases which followed, and were founded upon, that 
decision. 

§ 121. In the Ramnaad case (?/), the adoption in dispute 
was made by a widow, who had taken as heir to her late 
husband a Zemindary, which was his separate estate. 
The adoption was made with the assent, original or 
subsequent, of a number of sapindas of the last male 
holder, who were certainly the majority of the whole 
number then alive, if, indeed, they did not constitute the 
entire body of sapindas. The only question, therefore, 
which required decision was, whether in Southern India 
any amount of assent on the part of sapindas could give 
validity to an adoption made by a widow without her 

(o) F. MacN., 167; 1 N. C, 111-; Ramkiahea v. Mf. Strimuttee, 3 S. D.. 867 
(489. 494). 

(^) Anon., 2 31. Dig., 18; Bh<isker v. Narro Ragoonath^ Bom. Sel. Rep., 24 ; 
Brtjhhookunjee v. Ookoolootsaojety IBor., 181 [202] ; Nimbalkarv. Jayavant- 
ravt 4 Bom. H. C. (A. C. J.), 191 ; Oiriotpa v. Bfiimaji Bagunath, 9 Bom., 68. 
See Dukhina v. Rash Beharee , 6 Snth., 221, where it was suggested that a widow 
conld not act upon an authority after twelve years. Sed quaere. 

(q) OolUctoT of Madura v. Moottoo RamaUnga, 2 Mad. H. C, 206 ; affd.. 12 
M.I. A., 897; S. C. 1 B. L. R. (P. C), 1 ; S. C, 10 Suth. (P. C), 17. 



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PABAS. 120 — 122.] ASSENT OP SAPINDAS. 155 

husband's consent. The HighjCourt^of^Madras, after an High Court, 
elaborate examination of all the authorities, came to the 
conclusion that such an adoption was valid. They relied 
much on the theory that the law of adoption was founded ^ 
upon, and a development from, the old principle of actual 
begetting by a_brother or sapinda. Arguing from this 
analogy, they proceeded to say (r) : ** On the reason of 
the rule, then, it seems to us that if the requirement of 
consent is more than a moral precept, and it must never 
be forgotten that in all Hindu authors, as in the works 
of all authors who expound a system of positive law, pro- 
fessing to be based upon divine revelation, ethical and jural 
notions are inextricably intermixed, the assent of any one 
of the sapindas will suffice. If, however, the sapindas are 
by a fanciful, rather than a solid, analogy to be treated as 
a juridical person in which the whole authority of the 
husband is to be vested, it would be wholly contrarj' to 
sound jurisprudence to treat the assent of every individual 
member as necessary. On the contrary, the will of the 
majority of individual members must be taken as the will 
of the body, in any matter not manifestly repugnant to 
the purpose for which the body was created.'* 

§ 122. The Judicial Commit tee confirmed this decision 
up on the ground of positive authority and precedent, while 
declining to accept the supposed analogy between adop- 
tions according to the Dattaka form, and the obsolete 
practice of raising up issue to the deceased husband by 
carnal intercourse with the widow. They then proceeded 
as follows (s) : — 

" It must, however, be admitted that the doctrine is Judicial Com- 
stated in the old treatises, and even by Mr. Colebrooke, "*'****• 
with a decree of vagueness that may occasion considerable 
difficulties and inconveniences in its practical application. 
The que8tion,who are the kinsmen whose assent will supply 

(r) 2 Bf ^d. H. C, 2-(f I have already sugeested my belief that the two things 
were perfectly independent of each other. See ante $ 66, et aeq. 
(«) 12 M. I. A., 441 ; 8. C, 1 B. L. R. (P. C), 1 ; S. C, 10 Suth. (P. C ), 17. 



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156 LAW OP ADOPTION. [CHAP. V, 

the want of positive authority from the deceased husband, 
Undiridod pro- is the first to suggest itself . Where the husband's family 
is in the normal condition of a Hindu family, i.e., undivided, 
that question is of comparatively easy solution. In such 
a case, the widow, under the law of all the schools which 
admit this disputed power of adoption, takes no interest in 
her husband's share of the joint estate, except a right to 
maintenance. And though the father of the husband, if 
alive, might, as the head of the family and the natural 
guardian of the widow, be competent by his sole assent to 
authorise an adoption by her, yet, if there be no father, the 
assent of all the brothers, who, in default of adoption, 
would take the husband's share, would probably be required, 
since it would be unjust to allow the widow to defeat their 
interest by introducing a new co-parcener against their will. 
Where, however, as in the present case, the widow has 
Separate estate, taken by inheritance the separate estate of her husband, 
there is greater dilBculty in laying down a rule. The 
power to adopt, when not actually given by the husband, 
can only be exercised when a foundation is laid for it in the 
otherwise neglected obseiTance of religious duty, as under- 
stood by Hindus. Their Lordships do not think there is 
any ground for saying that the consent of every kinsman, 
however remote, is essential. The assent of kinsmen 
seems to be required by reason of the presumed incapacity 
of women for independence, rather than the necessity of 
procuring the consent of all those whose possible and 
reversionary interest in the estate would be defeated by the 
adoption. In such a case, therefore, their Lordships think 
that the consent of the father-in-law, to whom the law 
points as the natural guardian and * venerable protector' of 
the widow, would be sufficient (t). It is not easy to lay 
down an inflexible rule for the case in which no father-in- 
law is in existence. Every such case must depend on the 
circumstances of the family. All that can be said is, that 
there should be such evidence of the assent of kinsmen as 



{t} So held in Bombay where the case arose. Vithoba v. Bapu, 15 Bom., 110. 



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im> 



PABA. 123.] A8SBNT OP 8APINDA8. 167 

suffices to show that the act is done by the widow in the 
proper and bond fide performance of a religious duty, and 
neither capriciously, nor from a corrupt motive. In this 
case no issue raises the question that the consents were 
purchased, and not bond fide obtained. The rights of an 
adopted son are not prejudiced by any unauthorised aliena- 
tion by the widow which precedes the adoption which she 
makes ; and though gifts improperly made to procure 
assent might be powerful evidence to show no adoption 
needed, they do not in themselves go to the root of the 
legality of an adoption. 

" Again, it appears to their Lordships that, inasmuch as Express or 
the authorities in favour of the widow's power to adopt, Sonf ^"^^'^^ 
with the assent of her husband's kinsmen, proceed, in a 
great measure, upon the assumption that his assent to this 
meritorious act is to be implied wherever he has not for- 
bidden it, so the power cannot be inferred when a prohibi- 
tion by the husband either has been directly expressed by 
him, or can be reasonably deduced from his disposition of 
his property, or the existence of a direct line competent 
to the full performance of religious duties, or from other 
circumstances of his family, which aflford no plea for a 
supersession of heirs, on the ground of religious obligation 
to adopt a son in order to complete, or fulfil, defective 
religious rites " (u). 

§ 123. Of course, in all subsequent instances of adoption Bamnaad doo- 
by a widow without express authority from her husband, extended.*** ^ 
the effort has been to bring the case within, or to exclude 
it from, some of the above dicta. I say dicta, because the 
only point actually decided wa^ that the assent of th e 
gaa|o rity of the sapindas was sufficient. 

Accordingly, in a Madras case, which followed shortly 
after the decision of the Bamnaad suit, an attempt was 

(ti) The practice in the Punjab appears to be exactly the same as that laid 
d^wn in the Bamnaad cote. An adoption is there looked upon merely as a mode 
of transferring, or creating, a title to property. A widow may adopt either with 
her husband's permission, or by consent of his kinsmen, but in no case against 
an express prohibition by him. Punjab Gust., 88. 



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must assent. 



158 LAW OP ADOPTION. [CHAP. V, 

made to push that doctrine to the extent of holding that the 
consent of sapindas was wholly unnecessary, and that the 
widow might adopt of her own authority. But the Court 
refused to carry the law further than had been laid down 
in that judgment, in which ** there had been the assent of 
a majority of the husband's sapindas to the adoption on 
his behalf " (v). 

Travancore case. § 124. The next case arose in the Travancore Courts, 
where a widow had made an adoption without the consent 
of her husband's undivided brother, but with the consent 
of her divided kinsmen. The Court, after weighing the 
judgments of the High Court and the Privy Council in 

Head of family the Bamnood case, decided against the sufficiency of the 
authorization. The Chief Judge, after observing that a 
woman under Hindu law was in a perfect state of tutelage, 
passing from the control of her father to that of her hus- 
band, and after his death to that of the head of his familyi 
pointed out that, in the absence of the father-in-law, the 
eldest surviving brother must necessarily be that head. 
He said : " it is clear to me, then, that the kinsman whose 
assent the law requires for this act, is the one who would 
be liable to support her through her widowhood, and to 
defray the marriage expenses of her female issue. In the 
case of divided kinsmen the case may be different, because 
no one in particular can claim to control her, or is charge- 
able for her maintenance ; but it seems to be clear that, 
united as the family is, the natural head and venerable 
protector, contemplated by the Shastras is the surviving 
brother, or if there are more than one, the eldest of them. 
It seems to me impossible to affirm that the liability to 
maintain the widow, and undertake the other duties of the 
family, is not coupled with a right to advise and control 
her act in so important a matter as the introduction of a 
stranger into the family, with claims to the family pro- 

(v) AruTtdadi ▼. JCuppammoZ, 8 M. H. C, 283 ; and per curiam, Paraaara ▼. 
Bangaraja, 2 Mad., 206. Venhata Kriahnamma y. Annapumamma,^ 28 Mad., 
486. 



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PABAS. 124 — 126.] CONSENT OP SAPINDAS. 159 

perty " (w). It will be seen that this reasoning was 
approved and followed by the Privy Council in the case 
which follows. 

§ 125. The next case was one of the class contemplated Berhampore 
by the Judicial Committee in their remarks above quoted, °*"** 
and exactly similar to that in the Travancore suit, the 
family being an undivided family, and the consent of the 
father-in-law being wanting. In it (x) the Zamindar of 
Chinna Kimedy died, leaving a wife, a brother, and a dis- 
tant and divided sapinda, the Zamindar of Pedda Kimedy ; 
there were no other sapindas. The deceased and his 
brother were undivided. Therefore, in default of an adop- 
tion, the brother was the heir. The widow adopted the son 
of the Pedda Kimedy Zamindar, admittedly without the 
<jonsent of the brother. She alleged a written authority 
from her husband, but pleaded that, even without such 
authority, she had sufl&cient assent of sapindas within the 
meaning of the Bamnaad decision. The Lower Court 
found against her on both points. On appeal, the High High Court. 
Court was inclined to think the authority proved, but 
reversed the decision of the Lower Court, on the ground 
that the assent of the Pedda Kimedy Zamindar, evidenced 
by his giving his son, was sufficient. The Court expressly 
ruled (y) and it was necessary so to rule, — 1st. That the 
consent of one sapinda was sufficient ; 2nd. That proxi- 
mity to the deceased with regard to rights of property 
was wholly beside the question. In the particular in- 
stance the assenting sapinda was not only not the nearest 
heir, but was not an immediate heir at all, because, being 
divided, he could not take till after the widow. 

§ 126. The Judicial Committee, on appeal, held that the judicial Com- 
written authority was made out. It was therefore unneces- °"**®®- 
sary to go into the question of law, but being of opinion 
that the views laid down by the High Court were unsound, 
they proceeded to intimate their dissent from them {z). 

(ti^) Bamaswami lyen v. Bhagati Animal^ 8 Mad. Jar., 68. 
Ix) Baghunadha v. Prozo Kithoro, 8 I. A., 164 ; 8. C, 1 Mad., 69 ; 8. C, 26 
Sath.,^. (y) 7 M. H. C, 801. (*) 8 I. A.. 190. 192. 



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160 LAW OP ADOPTION. [cHAP. V, 

In the tirst place, they reiterated their opinion that 
speculations derived from the practice of begetting a son 
upon the widow, upon which Mr. Justice Hollmoay had 
again founded his opinion, were inadmissible as a ground for 
judicial decision. They also stated that the analogy of that 
practice would not support the conclusions drawn from it. 
" Most of the texts speak of ' the appointed' kinsman. By 
whom appointed ? If we are to travel back beyond the 
Kali age, and speculate upon what then took place, we have 
no reasonable grounds for supposing that a Hindu widow, 
desirous of raising up seed to her deceased husband, was 
ever at liberty to invite to her bed any sapinda, however 
remote, at her own discretion (a) ; and that his consent of 
itself constituted a sufficient authorization of his act.*' 

** Positive authority, then, does not do more than establish 
that, according to the law of Madras, which in this respect 
is something intermediate between the stricter law of 
Bengal and the wider law of Bombay, a widow, not having 
her husband's permission, may adopt a son to him, if 
duly authorized by his kindred. If it were necessary, 
Anthorityof which in this case it is not, to decide the point, their Lord- 
"^^ifiiSnt. ships would be unwilling to dissent from the principle 
recognized in the Travancore case, viz., that the requisite 
authority is, in the case of an undivided family, to be sought 
within that family. The joint and undivided family is the 
normal condition of Hindu society. An undivided Hindu 
family is ordinarily joint, not only in estate, but in food and 
worship ; therefore, not only all the concerns of the joint 
property, but whatever relates to their commensality and 
their religious duties and observances, must be regulated 
by its members, or by the manager to whom they have 
expressly, or by implication, delegated the task of regula- 
tion. The Hindu wife upon her marriage passes into, and 
becomes a member of, that family. It is upon that family 
that, as a widow, she has her claim for maintenance. It 

(a) Gautama expressly declares that ** a son begotten on a widow whose 
husband's brother lives, by another more distant relation, is ezolnded from 
inheritance," xxviii., § 28. See ante § 71. 



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PARA. 126.] ASSENT OF SAPINDAS. 161 

is in that family that, in the strict contemplation of law, 
she ought to reside. It is in the members of that family 
that she must presumably find such counsellors and 
protectors as the law makes requisite for her. These seem 
to be strong reasons against the conclusion that for such 
a purpose as that now under consideration, she can, at her 
will, travel out of that undivided family, and obtain the 
authorization required from a separated and remote kins- 
man of her husband (b). 

** In the present case there is an additional reason Conacioni exer- 

/v • 1. 1 i T • 1 • - cise of discre- 

agamst the sufficiency of such an assent. It is admitted tion. 
on all hands that an authorization by some kinsman of the 
husband is required. To authorize an act implies the 
exercise of some discretion whether the act ought or ought 
not to be done. In the present case there is no trace of 
such an exercise of discretion. All we know is that the 
Mahadevi, representing herself as having the written 
permission of her husband to adopt, asked the Rajah of 
Pedda Kimedy to give her a son in adoption, and succeeded 
in getting one. There is nothing to show that the Rajah 
ever supposed that he was giving the authority to adopt 
which a widow, not having her husband's permission, 
would require." 

The remarks last quoted would probably make it difficult 
hereafter for a widow to plead, as she did in this case, 
first, that she had express authority from her husband to 
adopt, and, secondly, that if she had not such authority, 
the want of it was supplied by authority from kinsmen. 
Accordingly, in a later case, decided by the Judicial Com- 
mittee (c), an adoption was set aside inter alia on the ground 
that the consent of the managing member of the family, 

(6) Where, however, all the brancheK of the family are «liviclfd from the 
decBAsed husband aud from each other, the MudraH High Court hBs held that 
the bofuififle rousent of one divided raem>»er in suflBcient, where the assent of 
the other is withheld from improper motives. Farasara v. Ravgaraja, 
2 Mad. « 202. The widow, however, is bound to app^y to each sapinda for bis 
consent and the knowledge that he would refuse does n(»t relieve her from Ihi 
oblifration. Subrahmanyam v. Venkamma^ 26 Mad., 627. 

(c) Karunabdhi t. Ratnamuivar, 7 I. A., 173 ; S. C, 2 Mad., 270 ; Venkata- 
lakthmamma v. Naratayya, 8 Mad., 645. 

11 



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162 



LAW OP ADOPTION. 



[chap. V, 



Gontorc 



Keligioafl mo- 
tire for adop- 
tioD. 



Jadioial Com- 
mittee. 



which might in other respects have been sufficient, had 
been obtained by the widow upon a representation that 
she had received authority to adopt from her deceased 
husband, no such authority having been in fact given. 

§ 127. In a case, subsequent to the Berhampore case, 
one would have imagined that everything had concurred 
to place the validity of the adoption beyond dispute. The 
family was divided ; all the sapindas had assented, and 
the persons in possession of the property had no title 
whatever. But the High Court set the adoption aside on 
the ground " that it was not made out that there had 
been such an assent on the part of the widow as to show, 
to quote the words of the judgment of the Privy Council 
I in the Bamnaad case, * that the act was done by the 
widow in the proper and bond fide performance of a 
religious duty * " ; and that there was no appearance of 
any anxiety or desire on the part of the widow for the 
proper and bond fide performance of any religious duty to 
her husband. Her object appeared to have been to hold 
the estate till her death, and then continue the line in the 
person of the plaintiflf. This judgment was reversed o n 
appeal. The Privy Council, after pointing out that the 
facts of the case did not justify the inference drawn from 
them by the High Court, proceeded to say : — 

" This being so, is there any ground for the application 
which the High Court has made of a particular passage in 
the judgment in the Bamncmd case? The passage in 
question, perhaps, is not so clear as it might have been 
made. The Committee, however, was dealing with the 
nature of the authority of the kinsman that was required. 
After dealing with the vexata qtuestiOy which does not arise 
in this case, whether such an adoption can be made with 
the assent of one or more sapindas in the case of joint 
family property, they proceed to consider what -assent 
would be necessary in the case of separate property*; and 
after stating that the authority of the father-in-law would 
probably be sufficient, they said : * It is not easy to lay 



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PARAS. 127 & 128.] ASSENT OP SAPINDAS. 163 

down an inflexible rule for the case in which no father-in- 
law is in existence. Every such case must depend upon 
the circumstances of the family. All that can be said is, 
that there should be such evidence/ not, be it observed, 
of the widow's motives, but * of the assent of kinsmen, as 
suffices to show that the act is done by the widow in the 
proper and bond fide performance of a religious duty, and 
neither capriciously nor from a corrupt motive. In this 
case no issue raises the question that the consents were 
purchased and not bond fide attained.' Their Lordships 
think it would be very dangerous to introduce into the 
consideration of these cases of adoption, nice questions as 
to the particular motives operating on the mind of the 
widow, and that all which this Committee in the former 
case meant to lay down was, that there should be such 
proof of assent on the part of the sapindas as should be 
sufficient to support the inference that the adoption was 
made by the widow, not from capricious or corrupt 
motives, or in order to defeat the interest of this or that 
sapinda, but upon a fair consideration by what may be 
called a family council, of the expediency of substituting 
an heir by adoption to the deceased husband. If that be 
so, there seems to be every reason to suppose that in the 
present case there was such a consideration, both on the 
part of the widow and on the part of the sapindas ; and 
their Lordships think that in such a case, it must be 
presumed that she acted from the proper motives which 
ought to actuate a Hindu female, and that, at all events, 
such presumption should be made until the contrary is 
shown '* {d). 

§ 128. It does not seem quite clear, even now, whether DisoniBionasto 
theirLordships are of opinion that t he motive which operate s ^^ ^' 
upon the mind of a widow in making an adoption, can be 
material upon the question of . its validit y, where she has 

(<2) Vellankiy. VenkataRama,4I.A.,US; S.C.,lMad.,174; S.C.,26Sntb., 
21. In this case the hasband had died, leaving a son. The decision established 
that sapindas had the same power of authorising an adoption in lieu of a son 
who diedt aa thej would have had if there had never been a son. 



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164 



LAW OF ADOPTION. 



[chap. V, 



SinfnlneBB of 
adoption. 



obtained the necessary amount of assent : that is, whether 
evidence would be admissible which went to show that the 
widow was indifferent to the religious benefits supposed to 
flow from an adoption to her husband, or even disbelieved 
in the efficacy of such an adoption ; and that her real and 
only object in making an adoption was to enhance her 
own importance and position, and to prevent the property 
of her late husband from passing away to distant relations. 
With the greatest deference to any conclusions to the 
contrary, which may be drawn from the above passages, it 
seems to me that the Judicial Committee did not mean 
to lay down that such evidence would be material or 
admissible. The fair result of all their judgments appears 
to be, that the assent of one or more sapindas is necessary, 
as a sort of judicial decision that the act of adoption is 
a proper one. That decision, like any other, may be 
impeached, by showing that it was procured by fraud 
or corruption. But if it was arrived at bond fide by the 
proper judges, it is conclusive as to the propriety of the 
adoption. The judgment of the Court cannot be affected 
by the motives of the suitor. The reasons which 
influence the widow may be puerile or even malicious. 
But what the family decide upon is the propriety of her 
act, not the propriety of her reasons. Accordingly it has 
been lately decided by the Privy Council that the fact 
that a widow in Madras made an adoption, viz., that of 
an only son, which was sinful and irreligious, though 
not illegal, did not affect its validity when she had 
obtained the necessary consent of sapindas. This consent 
invested her with a power co-extensive with that of her 
husband (e). 

In Bombay, where the widow acts on her own dis- 
cretion, it was for sometime laid down that proof that 
she had been acting from sinful or corrupt motives in 
making an adoption would vitiate it. The Courts, 

{&) Balasu Ouruling<uwami v. B, BamtUakthmammat 26 I. A., 118; S. C, 
aa Mad., 898. 



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PABA. 129.] ASSENT OP SAPINDAS. 165 

however, were so liberal in placing the most favourable 
construction upon her acts and motives, that no case 
appears to have arisen in which an adoption was set 
aside for such a reason (/). The whole question was 
referred to a Full Bench in 1898 when it was decided 
that, inasmuch as the adoption procured for her husband 
all the religious benefits which he could have desired, any 
discussion of her motives was irrelevant (g). 

§ 129. As might have been anticipated, the ingenuity i» reiigionB 
of Hindu litigants was next directed to invalidating the t iai? 
assent of the sapindas. Accordingly an adoption by a 
widow, with the consent of the managing member and 
only adult sapinda of an undivided family, was set aside 
on the ground {inter alia) that his consent was given from 
interested motives (A). But where the assent is fair and 
bon:i fide, I would submit that it could not be objected to 
on the ground that it did not arise from religious motives. 
J have already suggested that, even according to Brah- 
manical views, religious grounds were not the only ones for 
making an adoption, and that among the dissenting sects 
of Aryans, and all the non-Aryan races, religious motives 
had absolutely nothing to do with the matter (i). But 
further, when a religious act comes to be indissolubly 
connected with civil consequences, it follows that the act 
may be properly performed, either with a view to the 

(/) Vithoba y. Bapu y lb Bom., l^AyPatel Vnndravan Jekisan v. Manilal^ 
ibia.t 565 ; Mahableshvar v. DurgabcUi 22 Bom., 199 ; Bhiinawa y. Sangawa, 
ibid., 906. 

{g) Bamchandra Bhagavan v. MtUji Nanabhai, 22 Bom., 558. 

(«) Karunabdhi v. Batnamaiyar y 7 1. A ., 173, 2 Mad., 270, and see Parasara 
▼. Rangaraja^ 2 Mad., 202. It will be presumed, in the absence of proof to the 
contrary, that the consent of the majority was given bond fide. Venkata- 
krishnamma v. Annapurnammay 28 Mad., 486. 

it) See ante § 105. 106. 1 have already stated (§ 106) that among the Tamil 
inhabitants of Northern Ceylon even the hasband, when desirous to adopt, must 
obtain the consent of his heirs, and they must evidence their assent by dipping 
their fingers in the sa£Fron water. If such consent is withheld, the rights of the 
dissenting p>i.rties to the inheritance will not be affected. Thesawaleme, ii., 1, 
5, 6. Probably this was the orii|inal law in Southern India, though it may have 
passed away when the Brahmanical view of adoption, as a duty and not merely 
a right, was introduced. But the necessity for obtaining the consent of sapindas 
to an adoption bv a widow, and the sufficiency of such consent, may be a sur- 
vival from the old law. If so, it would be an additional reason for supposing 
that religions motives had nothing to do with the adoption itself, or with the con- 
sent given to it by kinsmen. See as to the Nambudn Brahmans, 11 Mad., 188. 



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166 



LAW OP ADOPTION. 



[chap. V, 



Western India. 



religious or the civil results. Not only so, but that if the 
act is in fact performed, the civil consequences must 
follow, whatever be the motive of the actor. Marriage is 
just as much a duty with a Hindu as adoption. It could 
not be contended that the validity of a marriage, or 
any of its legal results, could be in the slightest degree 
afifected by the motives of either of the parties to the 
transaction. When the Test and Corporation Acts render- 
ed it necessary that a candidate for office should have 
taken the sacrament, it was not material or permissible 
to enquire, whether the communicant had spiritual or 
temporal benefits in view. 

§ 180. In Western India the widow's power of adoption 
is even greater than in Southern India. The Mayukh a, 
commenting on the same text of Vasishtha, dra^s from it, 
as already remarked (§ 112), exactly the opposite conclu- 
sion from that arrived at by Nanda Pandfta. The latter 
infers that a widow can never a dopt,/a8 s he c an ne ver 
obtain her husband's assen t ; the former infers that th e 
prohibition can only extend to a married wom an, a s sh e 
only ca n receive such an assen t (ft). The whole of the 
authorities are collected and reviewed in several cases in the 
Bombay High Court which have established, first, that in 
the Mahratta country and in Gujerat, a widow, who is sole 
or joint heir to her husband's estate, may adopt a son to 
her deceased husband, without authority from her husband, 
and without the consent of his kindred, or of the caste or 
of the ruling authority. The qualification is added, 
borrowed from the dictum of the Privy Council in the 
Bamnaad case, provided ** the act is done by her in the 
proper and bond fide performance of a religious duty, and 
neither capriciously nor from a corrupt motive " (Z). 

{k) V. May., iv., 6, § 17, 18. Dr. Buhler says that the principal argument 
advanced by the Mahratta writers for this view 18 a version of the text of 
^aunaka, where they read *' a woman who is childless, or whose sons have died'* 
(may adopt), instead of " a man," etc. The error of this reading is shown by 
the fact that in the subsequent verses (18, 14) the adopter is referred to in the 
masculine gender. See art. Vaunaha Smriti^ Journ. As. Soc. Bengal, 1S66. 

{I) Rakhmahai v. Radhnbaij 6 Bom. H. C. (A. C. J.), 181, ace. per curiam ; 
BhagvandaB v. Rajmal, 10 Bom. H. C, 257 ; Ramji v. Qhaman, 6 Bom., 498 ; 



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PARA. 130.] WHO MAY GIVE IN ADOPTION, 



167 



Secondly, that she cannot do so, where her husband has 
expressly forbidden an adoption (m),or where she has ceased 
to possess the character of his widow, as for instance by 
re-marriage (n). Thirdly, that she can never adopt during 
his lifetime without his assent (o). Fourthly, that a widow, 
who has not the estate vested in her, and whose husband 
was not separated at the time of his death, is not compe- 
tent to adopt a son to her husband without his authority, 
or the consent of her father-in-law, or her husband's 
undivided co-parceners (p). A further qualification is 
suggested by the Bombay High Court, piz., that where 
the adoption by a widow would have the effect of divest- 
ing an estate already vested in a third person, the consent 
of that person must be obtained (g). This will be consi- 
dered subsequently under the head of effects of an adop- 
tion (r). Fifthly, that an adoption made by a widow, 
which in other respects is valid, is not rendered invalid by 
the fact that the husband to whom she adopted was a 
minor (s). 

Under the second of the above rules, it was held by Sir Resnmpti^n of 
Michael Westropp, C. J., in the case of Lakshmappa v. assent. 
Bamappa (t), that where a widow made an adoption 
which, though legal was sinful, as tor instance that of an 
only son, her husband's assent could not be assumed, and 
therefore the adoption would be invalid. This decision 
was relied on in a recent case from Madras, where the 
widow, having no express authority from her husband, 
had adopted an only son with the consent of the husband's 
sapindas. The Judicial Committee said " we are not 



Dinhar Sitaram v. Ganesh Shivram, ib., 505 ; Giriowa\. Bhima^i Bagkunath^ 
9 Bom., 68. The onut of proving such a corrupt motive lies heavilj' on him who 
alleges it. Patel Vandravan Jekisan v. Manilaly 15 Bom., 565, and the 
importance of her motive is now denied. See ante § 128, note (rf). 

Cm) Bayabai v. Bala Venkateah^ 7 Bom. H. C, Appx. 1. 

(») Panchappa v. Sanganhasawa^ 24 Bom., 89. 

ip) Narayan v. Nana Manohar, 7 Bom. H. C. (A. C. J.), 153. 

(p) Bamji v. Ghaman; Dinhar v. Ganesh^ ub. sup. 

(q) Bupckund v. Bakhmabai, 8 Bom. H. C. (A. C. J.), 114; G<mal Bal- 
krUhna v. Vishnu, 28 Bom., 250. (r) See^o«e § 184, et aeq. 

{$) Fatal Vandravan Jekisan v. Manilaly 15 Bom., 665. 

it) 12Bom. H. C.,364. 



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168 LAW OF ADOPTION. [cHAP. V, 

retrying this Bombay decision. In Madras it is established 
that, unless there is some express prohibition by the 
husband, the wife's power, at least with concurrence of 
sapindasin cases where that is required, is co-extensive with 
that of the husband. That is certainly the simplest rule 
and it seems to their Lordships most consistent with prin- 
ciple. The distinction taken by Westropp, C. J., appears to 
have been quite novel and also at variance with a decision 
by his predecessor Sir Matthew Sausse. There may be 
some peculiarity in the school of law which prevails at 
Bombay to support it, though it has not been brought to 
their Lordships' notice ; but if there is any such it does 
not apply to these parties in Madras " (u). 

JftinB. § 131. Among the Jains, a sonless widow has the same 

power of adoption as her husband would have had, if he 
chose to exercise it. Neither his sanction, nor that of 
any other person is necessary (v) . The Court said of this 
class : — " They differ particularly from the Brahraanical 
Hindus in their conduct towards the dead, omitting all 
obsequies after the corpse is burnt or buried. They also 
regard the birth of a son as having no effect on the 
future state of his progenitor, and consequently adoption 
is a merely temporal arrangement, and has no spiritual 

Ponjab. objects (w) ." In the Punjab the custom appears to vary. 

In Gurgaon a widow can adopt without any consent, if 
she selects a son from her husband's agnates. She cannot 
adopt any one else without the consent of such agnates. 
InKohtak and several other districts,the husband's consent 
is necessary. In three cases, the Punjab Courts set aside 
adoptions by a widow for tvant of her husband's per- 
mission. Two of these cases came from Lahore and 
Delhi respectively. It does not appear where the third 



(v) BaZatu Qurulingaswamy v. B. Lakshmappa, 26 I. A., p. 128; S. C, 22 
Mad., p. 406 

(t>) Govindnath Ray v. Gulal Chand, 6 S. D., 276 (322); Sheo Singh v. Mi. 
Dakko, 6 N.-W. P.. 3b2; a«fd., 6 I A., 87; S. C, 1 All., 688; Lakmi Ch^md v. 
GaUo Bmi, 8 All., 319 ; Manik Chand v. Jagat Settani, 17 Cal., 518 ; Hamahk 
T MaadH, 27 Cal., 379. {w) ter cur., 6 N.-W. P.. 392. 



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PARAS. 131 & 132.] WHO MAY GIVE IN ADOPTION. 169 

case arose (x). In Madras the High Court has held 
that the right of a Jain widow to adopt without her hus- 
band's permission must be proved, like any other special 
custom (y). 

§ 132. Second, Who may give in Adoption. — As the Oniyparento 
act of adoption has the effect of removing the adopted son ***" ^^*' 
from his natural into the adoptive family, and thereby 
most materially and irrevocably affects his prospects in 
life, and as the ceremony almost invariably takes place 
when the adoptee is of tender years, and unable to exer- 
cise any discretion of his own in the matter, it follows that 
only those who have dominion over the child have the power 
of giving him in adoption. According to VasisJillia (^)» 
both _parents have power to give a son^ but a woman 
cannot give one without the assent of her lof^ l. Manu 
says (a) : ** He whom his father or mother (with her 
husband's assent) gives to another, etc., is considered as a 
son given.*' The words in parenthesis are the gloss of 
Kulluka Bhatta. Different explanations have been given 
to Vasishtha's text (b). Some say that the wife's assent Assent of wife, 
is absolutely necessary ; others, that if not given, the 
adopted son remains the son of his natural mother and 
performs her obsequies : others that the words mean that 
either parent has the power to give, but that the wife can 
only exercise this power during her husband's life with his 
assent. The last explanation is the one which is now 
accepted. It is quite settled that the father alone has 
absolute authority to dispose of his son in adoption, even 
without the consent of his wife, though her consent 
is generally sought and obtained (c). The wife cannot 
give away her son while her husband is alive and capable 
of consenting, without his consent ; but she may do so 

(a) Punjab Customary Law, II, 164, 17b, 206 ; III, 87, 89, 90. 
ly) Perta Ammani v. Krishnasamit 16 Mad., 182. 

(s) Vofuhthu, XV., § 2, 6 ; 3 Dig., 212. (a) Manu, ix., 168. 

(b) 3 Dig., 264, 267, 261 ; V. May., v. ; Steele, 46, 183. 

(c) Dattaka Mimamsa, iv., 13—17 ; v., 14, n. ; 3 Dig., 244 ; Alank Manjari v. 
Fakir Chand, 5 S. D., 366 (418) ; Chitko Baghunaih v. Janaki, 11 Bom. H. C, 
99; Mitaknhara, i., 11, $9. 



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170 LAW OP ADOPTION. [cHAP. V^ 

after his death, or when he is permanently absent, as for 
instance an emigrant, or has entered a religious order, or 
has lost his reason (d), provided the husband was legally 
competent to give away his son, and has not expressly 
prohibited his being adopted (e). But in a Bengal case 
the pundits laid it down, and it was held accordingly, that 
an adoption was bad where a widow had given away her 
only son as dwyamushyayaiia without the express consent 
of her late husband (/). It does not, however, appear 
from the report whether the decision went upon the ground 
that the adopted son was an only son, or upon the ground 
that he was given away without sufficient authority. The 
former seems rather to have been the case. It has been 
expressly ruled in Bombay, that whether the giving in 
adoption of an only son by his father is valid or invalid, it 
is at all events so improper that a widow, without the 
direct sanction of her husband, cannot be assumed to have 
authority to give such a son away (g). It was evidently 
the opinion of the High Court that a widow, in giving 
her son, exercises not an independent but a delegated 
authority, and that such an authority will be negatived 
when it is exercised in a manner which it may be supposed 
the husband would have disapproved. No other relation 
but the father or mother can give away a boy. For 
instance, a stepmother cannot give away her stepson (A), a 
brother cannot give away his brother (i). Nor can the 
paternal grandfather, or any other person {k). Nor can the 
parents delegate their authority to another person, for 

{d) Dattaka Mimamsa, iv., 10—12; DattakaChandrika, i.. HI. 32 ; Mitakshara, 
i., 11. § 9; Amachellum v. lyaaamy, 1 Mad. Dec, ^64; Huro Soondree v. 
Chunder money, Sevest., 938; Banguhai v. Bhagirthibai^ 2 Bom., 377; MhaU 
sabai v. Vithoba, 7 Bom. H. C, Appx. 26; Jogesh Chandra v. NrityakaU, 
30 Cal., 966. 

(e) NarayancuanUv. Kuppuaami, \l Mad., 113; Ourulingaawami v. Bama^ 
lakshmamma, 18 Mad., 68, p. 68 ; aflfd. 26 I. A., 113 ; i^. C, 22 Mad., 198. 

(/) Debee Dial v. Hur Hor Singh, 4 S. D., 320 (407). 

ig) Lakshmappa v. Bamappa, 12 Bom. H. C.. 364 ; SomasekJiara v. Suhadra- 
wo/i, 6Bom., 624. See, however, aB to this decision per Privy Council, ante § 130. 

(/*) Papamma v. V. Appa Bow, 16 Mad., 384. 

(♦) v. Darp., 825 ; Mt. Tara Munee v. Dev Narayun, 3 S. D., 387 (516) ; Moot- 
tooiamy v. Lutehmeedavummah, Mad. Dec , 1862, p. 97. See F. MacN., 223, 
combatmjc Veerapermal v. Karain Pillay, 1 N. C, 91. 

(%) Collector of Sural v. Dhiramgji, 10 Bom. H. C, 236. 



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PAKA8. 133 & 134.] WHO MAY GIVE IN ADOPTION. 171 

instance a son, so as to enable him, after their death, to 
give away his brother in adoption, for the act when done 
mnst have parental sanction (Z). And, therefore, even an 
adolt orphan cannot be adopte d, because he can neither 
give himself away, nor be given by any one with authority 
to do so {m). But what the law declines to sanction is the 
delegation by an authorised person to an unauthorised 
person of the discretion to give in adoption which is 
vested solely in the former. Where the necessary sanc- 
tion has been given by an authorised person, the physical 
act of giving away in pursuance of that sanction may be 
delegated to another (n). 

§ 133. The person who is authorised to give away a boy Conditiona 
in adoption may make his consent dependent on the ^£^1 ^ent. 
fulfilment of certain conditions : and it has been held 
that, where these conditions are not complied with, the 
adoption is invalid. For instance, where a father by letter 
authorised the giving of his son in adoption, provided the 
adopting party first obtained the assent of the British 
Government, an adoption made without such assent was 
held invalid, though the assent was not in other respects 
necessary (o). 

§ 134. The consent of the Revenue Board is necessary Consent of 
to an adoption by a person whose estate is under the actual **^®'™™®'* * 
management of the Court of Wards (p). It was once 
supposed that the consent of Government was also neces- 
sary in the case of Inamdars, Zemindars, and feudal 
chieftains whose estates would fall into the hands of the 
Government in the event of their dying without heirs, and 
in the time of Lord Dalhousie this principle was frequently 
acted on. But it seems clear that, though it was customary 



(I) Bashetiappa v Shivlingappa, 10 Bom. H. C, 268. 

(m) SuhbaluvammaX v. Ammakuttij 2 M. H. C, 129 ; Balvantrav v. Bayabai, 
6Bom. H.C. (O.C. J.),83: wtpra, lOBom.H. C ,268. So held even in the case of 
Jains where there is no limit ofage. Mari Devamma v. Jivamma, 10 Mysore, 384. 

(n) Vijiarangam v. Lakahuman, 8 Bom. H. C. (O. C. J.), 244; Venkata v. 
Subadrayl Mad., 649; Subbarayar v. Subbammal, 21 Mad., 497; Shamsing 
V. Santabai, 25 Bom. 551, p. 653. 

(o) Banffubai v. Bkagirtnibai, 2 Bom., 877. (p) See ante^lU. 



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172 



LAW OF ADOPTION. 



[chap. V, 



Origin of 
restriotions. 



in such cases to ask for the sanction of the ruling power, 
and to pay a nazzur on receiving it, still the sanction was 
considered to be due as a matter of right, and was not a 
condition precedent to the validity of the adoption itself, 
although in some cases the native power, with a high hand, 
may have refused to allow the adopted son to succeed (q) . 
§ 135. Third, Who may be taken in Adoption. — The 
r estrictions upon the selection of a person for adoption 
appear all to be of Brahmanical or igin, and t o rest upo n 
t he theory, that as the obj ec t of adoption was the pe r- 
f ormance of religious rites to deceased ancestors, the fictio n 
of sonship must be as close as possible (§ 105). Hence, in 
Nearest sapinda. the first place, the nearest male sapin^g . should be selected, 
if suitable in other respects, and, if possible, a brother's son, 
as he was already, in contemplation of law, a son to his 
uncle. If no such near sapinda was available, then one who 
was more remote ; or in default of any such, then one who 
was of a family which followed the same spiritual guide, or, 
in the case of Sudras, any member of the caste (r). Proba- 
bly this rule was strengthened by the feeling that it was 
unjust to the members of the family to introduce a stranger 
if a near relative was available. Originally it seems to 
have been a positive precept. Subsequently it sunk to a 
mere recommendation. It is now settled that the adoption 
of a stranger is valid, even though near relatives, other- 
wise suitable, are in existence (s). In the second place, 
no one can be a dopted whose mother the ad op ter cou ld 
not have legally married (t). The origin and binding 



One whose 
mother ooold 
have been 
married. 



(q) Steele 188 ; Bhusker Bhachojee v. Narro Bagonath, Bom. Sel. Rep., 24 ; 

■"" "I.C.(A.C.J.),26;57a " ~ ' ' " , . 

nguhai v. Bliagirthibaiy 2 Bom., 377; BeU's Empire in India, 
127; Bell's Indian Policy, 10 ; Sir C. Jackson's Vindication of Lord Dalhontie, 9 ; 



Bamchandra v.Nanaji, 7 Bom. H. C. (A. C. J.), 26 ; Narhar Govind r. Narayan, 
lBom.,&(yi; Banguh ' ~' ■ - — . . - .. 



see Balaji Bamchandrav. Datta Bamchandra^ 27 Bom. , 75. By Lord Canning's 
proclamation the right to adopt has now been recognized in the case of feudal 
chiefs and jaghiredars. 

(r) Dattaka Mimarasa, ii., ^ 2. 28, 29, 67, 74, 76, 80; Dattaka Chandrika, 
i., § 10, 20, ii., § 11 ; Mitakshara, i., 11, § 18, 14, 86; V. May., iv., 6, § 9, 16, 19. 

(«) 1 W. McN., 68; 2 Stra. H. L., 93, 102; Gocoolanund v. Wooma Daee, 15 
B. L. B., 405 ; S. C, 23 Suth., 340; afTd. aub nomine, Uma Deyi v. Gokoolanund^ 
6 I. A. ,40; S.C.,3Cal., 687; Babajiv. Bhagirthibai, 6Bom.H.C. (A.C.J.), 70; 
Darma Dagu v. Bamkrithnat 10 Bom , 80. These authorities must be taken as 
over-ruling the case of Ooman Dut v. Rnnhia Singh, 8 S. D., 144 (192), which 
was also a Kritrima adoption. {t) Dattaka Mimamsa, v., § 20. 



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PARA. 135.] WHO MAY BE ADOPTED. 173 

character of this rule have been criticised with great learn- 
ing and force by Mr. V. N. Mandlik (u). He admits that 
" the Dattaka Chandrika,the Dattaka Mimamsa, the Sams- 
kara Kaustubha, the Dharma Sindhu and the Dattaka 
Nirnaya contain this prohibition." These authorities base 
their opinion, first, on the text of Qaunaka that the adopted 
boy must bear the reflection of a son, to which they append 
the gloss " that is the capability to have been begotten by 
the adopter through niyoga and so forth " (v). Many 
objections are offered to this gloss by Mr. V. N. Mandlik, 
and, as I have already pointed out (§ 105, note), it is possi- 
ble that the text itself had originally a different meaning. 
Secondly, they rely upon a text which is attributed vari- 
ously to Qaunaka, Vriddha Gautama, and Narada, which 
states that a sister's son and a daughter's son may be 
adopted by Sudras, but not by members of the three higher 
classes, and upon a text of Qakala which explicitly for- 
bids the adoption by one of the regenerate classes of 
"a daughter's son, a sister's son, and the son of the mother's 
sister" {w). As to the former text, Mr. Mandlik argues that 
the correct translation is ** Sudras should adopt a daughter's 
son, or a sister's son. A sister's son is in some places 
not adopted as a son among the three classes beginning 
with a Brahmana." He points out that the Mayukha, 
as properly rendered, interprets the text as meaning that 
Sudras should adopt only, or primarily, a daughter's or a 
sister's son, but not as forbidding such adoptions by Brah- 
mans. This view is also supported by the Dvaita Nirnaya, 
and the Nirnaya Sindhu {x). The text of Qakala he dis- 

(u) Pages 478 — 495,614. Dr. Jolly also say b that "a close examination of 
the original an thori ties shows, that there is very little, if anything, in the Sanskrit 
treatises to warrant the formation of such a mle as this," Lect. 168. The rale 
itself was re-affirmed by the High Court of Madras after a full examination of 
Mr. Mandlik's argument. Minakshi \. Bamanada, 11 Mad., 49, and by the 
Privy Council. Bhagwan Singh v. Bhagwan Singh, 26 I. A., 163 ; S. C., 21 
AH., 412. 

(v) Dattaka Mimamsa, ▼., § 16 — 17 ; Dattaka Chandrika, ii., § 7, 8. I am 
unable to refer to the otlier authorities, but Mr. V. N. Mandlik says that they 
rely upon the same texts, p. 489. 

(w) Dattaka Mimamsa, ii., § 32, 74, 107 ; Dattaka Chandrika, i., § 17, 7. 

(«) V. May., iv., 6, § 9, 10 ; V. N. Mandlik, pp. 63—66. 



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174 LAW OP ADOPTION. [cHAP. V, 

poses of (p. 495) by treating its authority as of no weight 
in opposition to usage and conflicting authorities. The fact 
still remains, however, that the five digests above referred 
to lay down the rule in distinct and positive terms. The 
rule so laid down was stated by Mr. Sutherland, both the 
MacNaghtens, and both the Stranges (y) ; and, as limited 
to the three regenerate classes, it has been affirmed by a 
singularly strong series of authorities in all parts of India 
as forbidding the adoption of the son of a daughter, or of 
a sister, or of an aunt (z). In a recent case the Allahabad 
Court by a Full Bench ruling held that the Dattaka Mimamsa 
was not an authority in Provinces governed by Benares 
law, and that, in the absence of any prohibition of such 
adoptions in works earlier than it and the Dattaka Chan- 
drika, such adoptions were valid. This decision, however, 
was reversed by the Judicial Committee in a judgment 
which has finally established the invalidity of adoptions 
of that class in all cases to which the general Hindu law 
applies, and in which no countervailing custom is estab- 
lished (a). On the same ground, it is unlawful to adopt 
a brother, or step-brother, or an uncle, whether paternal 
or maternal (b). And it makes no difference that the 
adopter has himself been removed from his natural 
family by adoption; for adoption does not remove the 
bar of consanguinity which would operate to prevent 
inter-marriage within the prohibited degrees (o). This rule 
must, of course, be understood as excluding only the sons 

iy) Suih. Syii.,664; F. MacN., 150; 1 W MacN.,67; 1 Stra. H. L., 83, S.M., 
§84. 

is) Haee Gunga v. Baee Sheokoovur^ Bom. Sel. Rep., 73; Narasammal y. Bala- 
rama Oharlu^ 1 M. H. C, 420 ; Jivani v. Jivu, 2 M. H. C, 462 ; Qopalayyan v. 
Baghupatiayyauy 7 M. H C, 260; Eamalinga v. Sadasiva, 9 M.I.A., 606; 8.C., 

1 Sath. (P.O.), 26, where the side-note oalU the parties Vaisyas, though they 
were really Sudras. See aupra^ 2 M. H. C, 467; Kora Shunkov. Bebee MunneOt 

2 M. Dig., 32 ; Gopal Narhar v. Eanmant^ 8 Bom., 273, where all the authorities 
are examined ; Bhagirthibai v. Badhahai^ 8 Bom., 298; Parbati v. Sundar, 
8 All., 1 ; affd. 16 I. A., 186 ; S. C, 12 All., 61. 

(a) Bhagwan Singh v. Bhagwan Singh, 17 All., 294, 26 I. A., 163. 

(6) Dattaka Mimamsa, v., § 17 ; Bunieet Singh v. Obhya, 2 8. D.. 246 (816) ; 
Moottoosamy v. Lutchmeduvummahf Mad. Deo. of 1862, 96 ; SriramtUu v. Ba- 
maiyya, 8 3Cad., 16 ; Mmakahi v. Bamanada, 11 Mad., 49. The adoption of an 
nncle 8 son was sanctioned in Madras, apparently on the ground that such 
adoptions were sanctioned by usage. Virayya v. Hanumantat 14 Mad., 459. 

{e) Moothia v. Uppen, Mad. Deo. of 1868, 117. 



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PABA. 136.] WHO MAY BE ADOPTED. 175 

of woman whose original relationship to the adopter was 
such as to render them unfit to be his wives. A man 
<50uld not lawfully marry his brother's or nephew's wife, 
but a brother's son is the most proper person to be adopted, 
and so is a grand-nephew (d). A wife's brother, or his 
son, may be adopted («), and so may the son of a wife's 
sister (/), or of a maternal aunt's daughter {g), 

§ 136. This rule again appears to be of Brahmanical ^^^^no*ani- 
origin. The same authorities which lay it down as regards 
the higher classes state that Sudras (h) may adopt a 
daughter's, or sister's son. The Mayukha even states 
that, as regards them, such a person is the most proper to 
be adopted (i). He is obviously the most natural person 
to be selected. A mother's sister's son may also be 
adopted among Sudras (k). In the Punjab such adoptions 
are common among the Jats, and this laxity has spread 
even to Brahmans, and to the orthodox Hindu inhabitants 
of towns, such as Delhi (l). They are also permitted 
among the Jains (m), and in Southern India even among 
the Brahmans such adoptions are undoubtedly very 
common. It was decided, so late as 1873, that the 
practice had not attained the force of a legal custom (n). 
But in 1881, upon a renewed enquiry, the High Court 
pronounced that in Southern India such adoptions were 
valid among Brahmans. A similar practice among the 
Nambudri Brahmans of Malabar has also received judicial 



(d) Morun Moee v Bajoy, Suth. Sp., No. 122. 

(e) Kristniengar v. Vanamamalayt Mad. Dec. of 1856, 213 ; Runganaigum t. 
Nametevoya, Mad. Dec. of 1867, 94 ; Buvee Bhudr v. Boopshunker^ 2 Bor., 662 
[713] ; Snramulu v. Bamayyat 8 Mad., 15. 

if) Bofitf Ounga v. Baee Sneokoovur, Bom. Sel. Rep., 73, 76. 

[a) Venkata t Suhhadra, 7 Mad., 649. 

{h) The Kayaathas in Bengal are Sudras, and may make sach adoptions. 
Bajcoomar La II v. VUnettur Ih/al, 10 Cal., 688. 

(») V. May., iv., 5, § 10. 11. 

{k) Ohinna Nagayya v. Pedda I^agayya^ 1 Mad., 62. 

(0 Punjab Gust., 79—88 ; Punjab Customary Law, II, 111, 164, 206, 210. 

(w) 8heo Singh v. Mt. Dakho, 6 N.-W.P., 382, affd. 6 I. A., 87; S. C, 
1 All., 688 ; Haaaan AH v. Nagamal, 1 All., 288 ; Lakhmi Ohand v. Datto Bai, 
8AU..819. 

In) Gopalayyan w. Baohwpatiayyan, 7 M. H. C, 250 ; 2 Stra. H. L., 101 ; 
1 Gibelin, 89 ; Nelson's View of the Hindu Law, 90. 



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176 LAW OF ADOPTION. [cHAP. V, 

sanction (o). In the North- West Provinces the adoption 
of a step-brother is allowed among the unregenerate 
classes (p), and among the Borah Brahmans even sister's 
sons may be adopted (q). In Pondicherry the rule, as a 
general principle, is not recognised. A man may adopt 
his daughter's, or his sister's son, or any one of his wife's 
relations, but he may not adopt his own brother (r). In 
Western India also they appear to be permitted. It is 
also said that in the Deccan a younger brother may be 
adopted, and, though the adoption of uncles is forbidden, 
a different reason is alleged for the prohibition (s). 

Extenflionof § 137. A singular extension has been given to this rule 

^e'tbrotiiOT. l>y Nanda Pandita. He quotes a text of Vriddha Gautama : 
— **In the three superior tribes a sister's son is nowhere 
mentioned as a son," — and says that here a sister's son is 
inclusive of a brother's son. But as the brother's son is 
not only not prohibited, but is expressly enjoined, for 
adoption, he draws the remarkable conclusion that a 
brother's son must not be adopted by a sister. And this 
opinion was acted upon in the North- Western Provinces, 
where the Court set aside an adoption by a widow, acting 
under her husband's authority, where she had selected the 
son of her own brother (t). If the adoption had been 
made by her husband, and not by herself, it would have 
been perfectly valid (u). The same principle seems to 
have been the ground of a case which is reported, and 
discussed at much length, by Sir F. MacNaghten (v) , 
There a man died leaving three widows, and an authority 
to them to adopt. As they could not agree, a reference 
was made to the Master, who reported in favour of a boy 

(oj Vayidinada v. Appu^ 9 Mad., 44 ; VUhnu v. KrishnaUt 7 Mad., 3 ; per 
curtaniy 11 Mad., 65. 

(n) Phundo V. Jangi Nath, 15 All., 327. 

iq) Chain Sukh Ram v. Parbati, 14 All., 53. 

(r) Sorg H. L., 130; Co. Voi\.. 877. 

(«) Steele, 44 ; ifvtffcui itao V. Govindrao, 2 Bor., 86; V. N. Mandlik, 474, 
495; W.&B.,887. 

{t) Dattaka Mimamsa, ii., § 33, 34; Mi. Datta^ v. Ltuhman Singhf 
N.-W. P., 117. 

{u) See authoritiefl quoted, § 185, notes (c),(d). 

(tj) Dagumbaree v. Taramonee, F. MacN., 170, App. 10. 



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PARAS. 137 & 138.] WHO MAY BE ADOPTED. 17-7 

who "was the son of the second widow's uncle. The next 
question that arose was, whether the boy could be received 
in adoption by the second widow. It was argued that 
this was impossible, because she could not without incest 
have been the mother of a boy by her own uncle. The 
pandits differed, and no decision was ever given, the 
second widow having waived her right in favour of the 
elder. Sir F. MacNaghten, however, pronounces unhesi- 
tatingly in favour of the objection. It seems to me, 
however, with the greatest respect, that this is introducing 
into the Hindu theory of adoption a second fiction, for 
which there is no foundation. The real fiction is, that 
the adopting father had begotten the child upon its natural 
mother ; therefore, it is necessary that she should be a 
person who might lawfully have been his wife. There is 
no fiction that the natural father had also begotten the 
child upon the adopting mother. The natural son be- 
comes the son, not merely of the particular wife from 
whom he is born, but of all the wives ; and the authors of 
the Dattaka Mimamsa and Dattaka Chandrika seem to 
think that the same result follows in the case of several 
vnves from an adoption (w). The fiction can hardly 
extend to the length of his being conceived by all. In 
fact it would appear that the Hindu law takes no notice 
of the wife in reference to adoption. The relation of the 
adopted son to her arises upon adoption. But the balance 
of authority and reasoning appears to be opposed to the 
idea that relationship to her has any effect upon the 
choice of the boy to be adopted (x). 

§ 138. The adopted son must be of the same class a s idontityofoagto. 
bis adopting father , that is, a Brahman may not adopt a 
Kshatriya, or vice versa (y). This rule is p robably a n 
innovation upon ancient usage , as Medhatithi and others 

(w) Mann, ix., § 183 ; Dattaka Mimamsa, ii., § 69 ; Dattaka Chandrika, i., § 23. 
And BO the pandfts stated in this case, F. MacN., App* 11. 

(*) This view was approved by the MadfaH High Court. Srvramulu v. 
Bamayya, 3 M id., p. 17 ; and in Bombay, Bai Nani v. Chunilal^ 22 Bom., 978. 

{y) An orthodox Hindn may adopt the son of a member of the Sadharam 
Brahmo Somaj. Kutum Kumari v. SatycM Banjan, 80 Cal., 999. 

12 



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178 LAW OP ADOPTION. [CHAP. V, 

interpret the words of Manu ** being alike*' (translated by 
Sir W. Jones '' being of the same class ") as meaning 
merely, possessing suitable qualities, though of a different 
class {z). In the time of Manu a man might have 
married wives of different class, and the sons of all such 
wives would have been legitimate, and would have inherit- 
ed together, though in different proportions (a). Each of 
such sons must have been competent to perform his 
father's obsequies, though perhaps with varying merit. 
It would have been remarkable, therefore, if a man could 
not have adopted the son of a woman whom he might 
have married. Baudhayana makes no reference to caste, 
and Vasishtha merely says, ** the class ought to be 
known '' (§ 107), which is natural enough, as determining 
a preference. The other authors (Katyayana, (^^'Ui^s^ka, 
Yajnavalkya, and Yaska), who forbid the adoption of one of 
unequal class, admit that such adoptions do take place, 
and are effectual as prolonging the line, though not for 
purposes of oblations. They, therefore, declare that a son 
so adopted is entitled to receive maintenance (6). From 
this, I presume, they considered that he was effectually 
severed from his natural family. It is probable, therefore, 
that, as long as mixed marriages were lawful the adop- 
tion of sons of inferior caste was also lawful (c). When 
the former ceased, the latter also ceased. At present, I 
imagine that the adoption of a Kshatriya by a Brahman 
would be a mere nullity, and would neither take the boy 
out of his natural family, nor give him any claim upon the 
family of the adopter. The case has never occurred, and 
is quite certain never to occur. 
Personal dig- § 139- A.S the chief reason for adoption is the perform- 

qoftiifleaiion. ^^^^ ^f fimeral ceremonies, it follows that one wh o from 
any personal disqualification would be incapable of pe r- 

{z) Manu, ix.. § 16b; Mitaksharo, i.. 11, § 9 ; V. May., v., 5. § 4 ; Dattaka 
Mimamsa, ii., S 23—25 ; DatUka Chandrika, i.. § 12—16. 

(a) Mann, ix., $ 148-166 (6) See, too, D. K. 8 , vii., § 28, 24, citing Namda. 

(c) In Northern Ceylon this is the case still. The son, if adopted by a man, 
passes int^> his caste. If adopted by a woman, he remains in the caste of his 
natural father. Thesawaleme, ii., § 7. 



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PABAS. 139 & 140.] WHO MAY BB ADOPTED. 179 

f orming them, would be an unfit person to be adopted (d)^ 
Nothing is said upon the point by Hindu law wnters. 
Probably the idea that such an adoption could be made 
would never have occurred to their minds. As a person so 
adopted would also be incapable of succeeding to the 
property of the adopter, and so continuing his name and 
lineage, every object would fail which an adoption is 
intended to serve. 

§ 140. A further limitation upon the selection of a son Limitation from 
for adoption arises from age, and the previous performance ***' 
of ceremonies in the natural family (e). The leading 
authority upon this point is a passage from the Kalika - 
purana , which is relied on by Nanda Pandit a, butjwhich is^ 
treated as spurious b y t he au thor of the Dattaka Cha ndrik a, 
Nilakanta, and others, and which is admittedly wanting 
in many copies of that work. It lays down absolutely 
that a c hild must no t be adopted whose ag e exceeds five 
years, or upon whom the ceremony of tonsure has bee n 
performe d in the natural famil y (/). The result of a 
lengthened commentary on this passage in the D attaka Dattaka 
Mimamsa appears to be : first, that the limit of age as not 
exceeding five is absolute ; secondly, that one who has had 
the tonsure performed ought not to be adopted, as he will 
at the outside be the son of two fathers ; but, thirdly, 
that if no other is procurable, a boy on whom tonsure has 
been performed may be received. In that case, however, 
the previous rites must be annulled by the performance of 
the putreshti, or sacrifice for male issue. As regards other 

{d) Sath. Syn., 665 ; V. Darp., 828, 880. 

(e) As to the eight ceremomes for a male, see Colebrooke, note to 'Dattaka 
Mimamsa, iv., § *& ; 3 Dig., 104. Of these tonsuro is the fifth, and u-panayanaj 
or investiture with the sacred thread, is the eighth. The former is performed in 
the second or third year after birth, the latter, in the case of Brahmans, in the 
eighth year from conception. Bat it may be performed ho early as the fifth, or 
delayed lill the sixteenth year. The primary periods for upanayana in the case 
of a Kahafcriya are eleven, and of a Vaisya twelve years, hat it may be delayed 
till the ages of twenty-lwo and twenty-foor respectively. For Sadras there is 
no ceremony bat marriage. 

(/) Dattaka Mimamsa, iv., § 22; Dattaka Chandrika, ii., S 25 ; V. May., 
v., 5, S 20 ; Mitakahara, i., 11, { 18, note ; Jolly, § 161. 



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180 



LAW OP ADOPTION. 



[chap. V, 



Jagannatha. 



Dattaka Chan- 
drika. 



Benares law. 



rites, those previous to tonsure are immaterial, the per- 
formance of the upanayana is an absolute bar (g). 

Jagannatha appears to accept the text as literally bind- 
ing, and not- to recognize the right of performing the 
tonsure over again. He, therefore, considers an adoption 
to be invalid, if it is made after tonsure, or after the fifth 
year (h). 

On the other hand, the author of the Dattaka Chandrik a 
refuses to accept the text of the Kalika-purana as authentic. 
But even if it should be genuine, he explains it away by 
the possibility of performing tonsure a second time in the 
adoptive family. The result he arrives at is, that age is 
only material as determining the term at which w panavan a 
may be performed. So long as this rite in the ca se of the 
three higher classes, and marriage m the case of Sudra s, 
can be performed in the family of the a dopter, there^is 
no limit of any particular time {%). 

Mr. W. MacNaghten is of opinion that the rules laid 
down by the Dattaka Mimamsa and the Dattaka Chandrika 
should be followed in the Provinces in which they are 
respectively in force : that is, the Dattaka Mimamsa ip 
Benares, and the Dattaka Chandrika in Bengal and 
Southern India (i). From what has been already stated 
{§ 30) as to the authorship of the Dattaka Chandrika 
there seems to be no reason for ascribing to it any special 
authority in Southern India. The authority of the 
Dattaka Mimamsa in Benares, after much hostile criticism, 
has been recently recognised by the Privy Council as 
having acquired by long acceptance an independent 
authority (Z). 

§ 141. The only decisions upon this point under Benares 

{g) Dattaka Mimamsa, 30—56; 1 W. MacN., 72. Mr. Sutherland's ^loas 
upon Dattaka Mimamsa, § 58, that the words "a boy fire years old" means 
under six is a mistake. It means one who has not passed his fifth birthday. 
Per Mahmoodf J., Ganga Sahai v. LekhraiSinght 9 All., 810. 

(h) 8 Dig., 148, 249-251, 263. See. too, P. Mac., 189—146, 394. 

{%) Dattaka Chandrika, ii., § 90-38 ; 1 W. MacN.. 72. 

(*) 1 W. MaoN., 78. 

({) Bhagwan Singh v. Bhagwan Singh, 26 I. A.. 168 ; S. C, 21 All., 412. 



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PABAS. 141 & 142.] PERSON TO BE ADOPTED. 181 

law have been given in the C ourts of the North- We at 
Provinces. The first of these was in 1868 (m), when it 
was held that under the Dattaka Mimamsa an adoptio n 
was valid _ 8o long as the boy was below six years. Here 
the Court accepted the authority of the Dattaka Mimamsa, 
and of the Ealika-purana on which the rule is based, but 
fell into a mistake as to the meaning of the rule, in 
consequence of the gloss put upon it by Mr. Sutherland 
[§ 140 (/)]. The question arose again in 1886 , and was 
examined in the most elaborate manner by Mr. Justice 
Mahmood (n). The conclusions he arrived at are stated 
as follows : " I hold that the passage of the Kalika-purana 
upon which the limitation of five years for adoption is 
entirely founded, is not proved to be authentic ; that even 
H it be taken to be authentic, the interpretation adopted 
by Nanda Pandita in his Dattaka Mimamsa is not shown 
to be universally applicable ; that the interpretation may 
be restricted only to Brahmans intended for priesthood ; 
that this interpretation would bring the Dattaka Mimamsa 
in accord with the Dattaka Chandrika ; that various other 
plausible interpretations of the passage have been adopted 
by other authorities ; that such authorities may be referred 
to for the purposes of this question ; and that the matter 
being so dealt with by those authorities, it would be un- 
safe to set aside the plaintiff's adoption upon the solitary 
ground that he was older than five years at that time. ' ' 
He then proceeded to express his opinion that, as regards 
the twice-born classes, age was only material as determin- 
ing the time at which the upanayana may be performed, 
and that its performance was the ultimate limit for a 
valid adoption. As regards Sudras adoption could be per- 
formed effectually till marriage. 

^ 142. In Bengal and Southern India the decisions are BmgtX. 
i n favour of the vie w laid down by the DattaJga Chandrika . 

(w») Thakoor Oomrao Singh v. Thakooranee Mehtab Koonwer^ N.-W. P.i 
H. C. Bep., 1868, 103a. See per Mahmood, J., 9 A.11., p. 313. 

(n) Qanga Sahai v. Lekhraj Singh, 9 All., 268, pp. 316—824, 327, 328. 



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182 LAW OP ADOPTION. [CHAP. V, 

In some of the earlier Bengal cases, the pundits, while 
agreeing that the age of five years was not an absolute 
limit which could not be exceeded, seem to have thought 
that if tonsure had already been performed in the natural 
family and in the name of the natural father, a subsequent 
adoption would be invalid (o). In 1838, however, the 
Sudder Court Pundit, in reply to a question as to age, 
answered " that the period fixed for adoption with respect 
to the three superior tribes, Brahmans, Kshatriyas, and 
Vaisyas, was prior to their investiture with their respective 
cords : and with respect to Sudras, prior to their contract- 
ing marriage" (p). This opinion has been affirmed in 
several subsequent cases, and may now be treated as beyond 
doubt (q). The same rule has been repeatedly laid down 
Madras. ^^ Madras, both by the pundits and the Court (r). It is 

also suggested bjL Me*. Ellis that, even after upanayana, an 
adoption would be valid, if the person adopted was of the 
same goti-a as his adopter. He bases this view on the 
ground that where the gotra is different, the upanayana 
is a bar, since by it the person is definitely settled in his 
natural family, and this renders the performance of the 
datta Jhomam (§ 151) impossible. But where the gotra 
is the same, the performance of the datta homam, though 
proper, is not necessary for an adoption. And this view 
was adopted by the Travancore Court in a case between 
Brahmans. There the upanayana had been performed 
previous to adoption. But the Court held the objection 
to be immaterial since the person adopted was the son of 



(o) Kerutnartien v. Mt. Bhohinenreey 1 8. D., 161 (213) (as to the remark 
appended to this decision, see 1 W. MacN., 75) ; 2 W. MacN., 180 ; Mt. Dullahh 
V. Manu, S. D.,50(61). 

(p) Bullahakant v. Kishenprea, 6 8. D., 219 (270). 

{aj Nitradayee v. Bkolanath^ 8. D. of 1863, 668 ; Ramkishore v. Bhoobun^ 
8. D. of 1859, 229, 236 ; affirmed on review, 8. D. of 1860, i., 485, 490; reversed 
on a different point in the Privy Council tub nomine Bhoobun Moyee v. 
Bamkishorey where, however, the ruling as to the validity of the adoption on 
the ground of age was not disputed, 10 M. I. A., 279 ; 8. C, 8 Suth. (P. C), 16. 

(r) 1 Stra. H. L., 87, 91 ; 2 Stra. H. L., 87, 110 ; Mootoo Vigia Baghoonadha 
Satooputty^ alias Annaaamy v. Sevagamy Nachiar, 1 Mad. Dec, 106 ; affirmed 
by Privy Council on the 28th April, 1828, Chetty Colum Prusunna v. Chetly 
Colum Moodoo, 1 Mad. Dec., 406 ; Sreenevaanen v. Saahyummalt Mad. Dec. 
of 1859, 118 ; Veerapermallv. Narrain Pillay, 1 N.C., 138 ; Vythilinga v. Vyia- 
thammalt 6 Mad., 43 ; Pichuvayyan v. Subhayyan^ 18 Mad., 128. 



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PABA. 143.] PERPORMANCB OP CEREMONIES. 188 

the adopter's brother (s). This ruling was followed by 
the High Court of Madras after a very full investigation 
of the authorities, and upon evidence of local usage {t). 
In a later case the fact that the person taken in adoption 
was an unmarried man aged forty, who had succeeded to 
his father's estate, was held to be no valid objection to 
the adoption (u). The statement by M. Gibelin, that 
usage in Pondicherry admits of adoption after the 
upanayana in any case, appears to be incorrect as regards 
Brahmans (v). 

§ 143. This restriction again does not exist where th e riimitofagenot 
Brahmanical fiction of an altered pa ternity is unknow n. 
In the Punjab there is no restriction ^ of age ( ^?). Among 
the Jains the period extends to thirty-two, and it is said 
by HoUoway, J., that there is no limit of age (x). So in 
Western India, the author of the MajaJj^a says : " And 
my father has said that a married man, who has even had 
a son born, may become an adopted son " {y). In accord- 
ance with this dictum the pundits of the Surat Sudder 
Court reported that ** the rule that a boy should be adopt- 
ed under five years related to cases where no relationship 
exists ; but when a relation is to be adopted, no obstacle 
exists on account of his being of mature age, married and 
having a family, provided he possesses common ability, 
and is beloved by the person who adopts him" {z). So 
Mr. Steele states, " the Poona Shastries do not recognize 
the necessity that adoption should precede moonj and 
marriage." And he gives various statements as to the 
proper age for adoption ranging from five to fifty, and 
ending, " there is no limit as to age. The adoptee should 

(s) 2 Stra. H. L., 104 ; Hatnaawami lyen v. Bhagati Ammaly 8 Mad. Jur., 68. 

(t) Viraragava Ramalinga^ 9 Mad., 148, overruling Venkataaaiya v. Veti- 
kata Charlu, 3 Mad. H. C. 28. 

(tt) Papamma v. V. Appa Bau, 16 Mad., 384, p. 396. 

{v) I Gibelin, 94 ; Sorg H. L., 1:52 ; Co. Coii., 170, 377. 

(w) Panjab Cust., 82. 

(x) Bithcum v. Soojun, 9 Mud. Jur., 21, cited in Sheo Singh v. Mt. Dakhot 
6 N.-W. P.. 402; Qovindnath v. Oululchundy 6 S. D., 276 (322). 

(y) V. May., iv., 6, § 19. His father was Shanker Bhatt, author of the Dvait 
Nirnaya, a work of special authority in the Deocan. Nathaji v. Harif 8 Bom. 
H.O. (A.C.J.), 70. 

{z) Brijhhookunjee v. Ookoolootsaojee^ 1 Bor., 195 [217] . 



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184 LAW OP ADOPTION. [CHAP. V, 

not be older than the adopter'* (a). None of these 
authorities make any distinction as to the caste of the 
person adopted. In the Surat case the parties appear to 
have been Brahmans, or at least Kshatriyas. In some of 
the cases in which the adoption of a married man has 
been held valid by the Bombay High Court, the parties 
happentlft to be Sudras, but the decision did not turn 
upon that circumstance (6). It has been settled by recent 
cases, after some doubt, that a married Brahman may 
be lawfully adopted, 4nd that it makes no difference as to 
the legality of the transaction whether he belongs to a 
different or to the same gotra as the adopter (c). 

Only SOIL § 144. The p rohibitio n against adopting an only son 

rests on the texts of Vasishtha, Baudhayana a jid (, ^auna ka, 
(§ 107). " Let no man give or accept an only son, since 
he must remain for the obsequies of his ancestor" (d). 
So Qaunaka says, ''By no man having an only son is 
the gift of a son to be ever made." From these Nanda 
Pandita infers a prohibition against accepting also, and 
says that the offence of extinction of lineage, denounced 
by Vasishtha, is incurred by both giver and receiver (e). 
This prohibition is by some authorities exteqd gd to the 
adoption of an eldest son , since his merits are specially 
appropriated in the interests of his own father (/). And 
even to the adoption of one of two sons, since such an act 
would leave the father with an only son, and thereby 



(a) Steele, 44, 182; V. N. Maudlik, 471; 1 W. MacN., 75. This was also 
the case in Rome. The rule as to difference of age, if it has any force at all, does 
not apply as between an adopting widow sind the adoptee. Oopal Balkrishna v. 
Vishnu Baghunath, '2a Bom., 250, p. 256. 

(6) Bajo Ninbalkar v. Jayavantrao, 4 Bom. H. 0. (A. C.J.), 191 ; Nathaji 
V. Hari, 8 Bom. H.C. (A. C. J.), 67. 

(c) Sadcukio V. Hari Moneahvar^ 11 Bom. H.C, 190; Lakahmappa v. 
Barnappa, 12 Bom. H. C, 364 ; Dharma Dagu v. Bauikrishna^ 10 Bom., 80. 
Among the Natnbndri hirahmans (^ 44j, the power to adopt a mArried man 
appears only to exist when the adoption is of the Kritrima form, 11 Had., p. 176. 

(d) So in Borne, the only male of his genus could not be adopted, for the sacra 
would in such a case be lost. 

(e) Dattaka Mtmamsa, iv., § 1—6; Dattaka Chandrika, i., § 27, 38 ; Mitak- 
shara, i., U, f 11 ; V. May., iv.. 6, § 9, 16 ; V. N. Mandlik, 502. 

(/) Mitakshara, i., 11, ^ 12, citing Manu, iz., § 106 ; Viramit.,ii.,2, §8 ; Saras* 
rati Vilasa, § 368. 369 ; 2 Stra. H. L., 105 ; 2 W. MacN.. 182 ; V. May., iv., 6, 
4 ; Permaul Naicken v. Pottee Ammalt Mad. Dec. of 1861, -234. 



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PARA.S. 144 & 145.] ONLY OR ELDEST SON. 185 

subject him to the chance of being left wholly without 
issue. But this final precept is admittedly only dissuasive, 
and not peremptory (g). And the same decision has lately 
been given as regards the adoption of an eldest son (A). 
The value to be placed upon these texts, according to 
Hindu rules of interpretation, is discussed at length by 
Mr. V. N. Mandlik. His view is that they are recommen- I 
datory only, and not prohibitory, and that a violation of/ 
them affects the offender, but does not detract from the^ 
validity of the rite (i). 

§ 145. It seems to be admitted everywhere that there is son of two 
no objection to the adoption of an only son, when he is '*tt>«w- 
taken as dwyamushyayana . or the son of two fathers; 
either by an express agreement that his relationship to his 
natural family shall continue (Zp), or by the fact that the 
only son of one brother is taken in adoption by another 
brother, in which case the double relationship appears to 
be established without any special contract (I). The 
remaining question, as to the validity of the adoption of 
an only son, has given rise to an extraordinary amount of oniy son. 
discussion, and has been treated with a series of conflict- 
ing judgments commencing from the beginning of the 
last century, and only settled in its closing year by a 
final decision of the Judicial Committee (m). The 



iq) DAtOAka MinukinsA, iv., § d; 1 Stra. H. L., 85; 1 W. MacN., 77. 

{h) Janokee v. Qopaul, 2 Cal., 366 ; affd. on facts 10 1. A., 32 ; S. C, 9 Gal., 766 ; 
Kaahibai v. Tatia, 7 Bom., 221 ; Jamnabai v. Baichand, ib., 226. 

(i) v. N. Mandlik, 496—508, where he gives instances of the adoption of only 
sons from the Vedic ages downwards. 

(*) 2 W. MacN., 192; 1 Stra. H. h.^m; futwaha, 2 Kn., 206; Shumshere v. 
DilraJ, 2 S. D., 189 (216) ; Joymonee v. Sibosoondry, Pulton, 75 ; Behari Lai v. 

(l) Dattak* Mimamsa, ii., 87, 38, vi., § 31-36, 47, 48; Datt&ka Chandrika, 
i., § 27. 28, iii., § 17, v., § 33; 1 Stra. H. L., 86; 2 Stra. H. L., 107 ; Steele, 46, 
183; Sar^adhikari, 635; Permaul Naicken v. Pottee Ammalj Mad. Dec. of 
1851, 234; ver owriam^ Gocoolanund v. Wooma Daee^ 16 B. L. R., 416; S. C, 
23 Sath., 340; NUmadhub w BUhumber, 13 M. I. A., 101; 8. C, 12 Suth. 
(P. C), 29; Chinna Gaundany. Kutnara, 1 Mad. H. C, 67; Uma Deyi v. 
Gocoolanundj 51. A.,42\ S. C, 8 Cal., 687; V. May., iv., 6, §21,22. The power 
of giving or taking a son in adoption in the dwyamiuhyayana form may in 
Bombay be exorcised not only by the brothers bot also by their widows. Krishna 
V. Paramthrit 26 Bom., 637. 

(m) In the last and previous editions of this work the whole law bearing upon 
this sabject, which has now only a historical interest, was given in great detail : 
6th ed.. $§ 138-188. 



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186 LAW OP ADOPTION. [CHAP. V^ 

Bengal. decisions in the Benga l Sudder and High Courts were 

uniformly against the adoptio n. The earlier cases were 
decided, as was the habit in those days, upon the futwaha 
of the pundits, but in two later cases in the High Court 
the whole subject received a thorough discussion, in the 
former of the two by that great Hindu lawyer Mr. Justice 

HadTM. Dwarkanath Mitter (n). In Madras there was no case 

which directly raised the question till 1862. It arose 
incidentally in various cases from 1801, and during the 
time Sir Thomas Strange was collecting materials for his 
work on Hindu Law, he consulted Mr. Colebrooke and 
Mr. Ellis, and laid before them various futwahs of Madras 
pundits upon the subject. Mr. Colebrooke was of opinion 
that such an adoption was invalid. Mr. Ellis, a Madras 
civilian, and the pundits thought that Jbhe adoption w as 
f orbidden, but that if mad_Q it. wmild ^be effectua l (o). 
This was the view which Sir Thomas Strange himself 
took, and which he put forward from the Bench, and in 
his own book (p). In 1862 a direct decision to the same 
effect was given on appeal by the Madras High Court (q). 
The judgment was not a satisfactory one. The Chief 
Justice professed to hold by decided cases, and for these 
he referred to several earlier Madras cases in which 
the point had not been decided at all, and to a Bengal 
case in which the decision was exactly the opposite to 
what he supposed it was. The decision, however, appears 
to have been accepted as final, and was followed as such, 
and without argument in two later cases, the last of which 
gave rise to the final appeal to the Privy Council (r). 

In Allahabad the question had a very short hist ory. 
The case came before a Full Bench in 1879, when the 



(n) Nandram v. Caahee Pande, 8 S. D. 282 (aiOi ; 4 S. D., 70 (89) ; Debee Dial 
V. Hur Hot Singh, 4 S. D., 320 (407) ; Upe?idra Lai v. Hani Fraaanna Mayt^ 
1 B. L. R. (A. C. J.), 221 ; S. C, 10 Suth., 347; Manick Chunder v. Bhuggo- 
batty, 3 Cal., 443. 

(o) 2 Stra. H. L., 87, 88, 105. 106, 107. 

(p) Veerapermall v. Narrain Pillay, I N. C, 91, 126 ; 1 Stra. H. L , 86. 

\q) Chinna Qaundan v. Kumara Oaundan, 1 Mad. H. C, 54. 

(r) Narayanatwamy y. Ktivpuaamif 11 Mad., 43; Balasu Gurulingaatcami 
V. Bama Lakahmamma, 16 Mad., 53 ; affd., 26 I. A.. 113 ; S. C, 22 Mad., 398. 



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PABA. 146.] ONLY OR ELDB8T SON. 187 

rival views of the Bengal and Madras Cour ts were consi- 
dered, and the view taken by the latter /was preferre d. 
This would naturally have closed the discussion in that 
Presidency, but in consequence of doubts, expressed by 
Straight and Mahmood, JJ., in a later case, the question 
when it next arose was a second time referred to a Full 
Bench. There it received a most exhaustive examination 
from Edge, C. J., and -ffwox, J., with the result that the 
Court adhered to its former opinion. The last case came 
on appeal before the Privy Council, where it was heard 
separately from the Madras case, both, however, being 
dealt with and affirmed in a single judgment (s). 

§ 146. In Bombay the current of events was much more Bombay, 
varied. The earliest case, as far as I am aware, in which 
the point was discussed, was one which arose in 1819. 
There the legality of adoption of an eldest son was dis- 
puted, but it appeared that the natural father had given 
away both his sons, and the Shastries were asked whether 
this was lawful. Their opinion was that the sin lay with 
the giver, not with the receiver, and that when made the 
adoption was valid (t). This view was followed in several 
cases in the Bombay High Court where the adoption of 
an only son was disputed, and it is stated by Mr. Mandlik 
that this had been the course of decision in the Sudder 
Court in cases which are not recorded (u) ; the current 
began to change' under the influence of Sir M. Westropp, 
C. J., in 1875. The case before him was, whether the 
giving by a widow of an only son in adoption was valid or 
invalid. The only question necessary to be decided was, ^ 
whe ther the authority of the deceased husband could^be , 
presume d. The whole law, and all the precedents upon ' 
the point, were minutely examined, and the conclusion he 
arrived at was that the giving or receiving of an only son 

{$) Hanumanv. Chirai, 2 All. (F. B.), 164; Beni Pershadv. Mt. Hardai 
Bibi, 14 All. (P. B.), 67 ; affd. Badkamohun v. Hardai Bihi, 26 I. A., 118. 

(t) Huthut Bao V. Govindrao, 2 Bor., 76, 86. 

(m) MhaUabai v. Vitkoba, 7 Bom., A. C, Appx. 26 ; Baj3 Nimbalkar v. Jaya- 
vantrav, 4 Bom. H. C. (A.. C. J.), 191; Bangubai v. Bhaghirtibai, 2 "Bom. ^ 
p. 379; Mandlik, 507. 



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188 LAW OP ADOPTION. [CHAP. V, 

was so improper that the consent of the husband could 
not be presumed. The Chief Justice, however, expressed 
himself most unfavourably to the validity of such an adop- 
tion, though he admitted that such cases had been recog- 
nised as legal under the old Sudder Court (t?). This view 
was followed in an unreported case between Lingayets, 
where the validity of such an adoption had to be decided 
on an application for a certificate of heirship under Act 
XXVII of 1860. The case was referred to a Full Bench 
presided over by Sir Michael Westropp and the adoption 
was set aside (w). Finally, in 1889, in a formal litigation 
between parties, the Full Bench treated the decision in 
the Lingayet case as binding upon them, and held that 
the adoption of an only son was absolutely invalid (x). 

Privy Connoa § 147. It is singular that a case of constant occurrence, 
^^®°*"*"*' upon which such varying views had been expressed during 

an entire century, should never have come before the 
Privy Council till 1898 , and should then have apj)eared 
simultaneously in two cases, one from Madras and the 
other from Allahabad. Each case was argued separately, 
the Court which had heard the Madras case being rein- 
forced by Lords Herschell and Watson on the hearing of 
that from Allahabad, and it is believed that every available 
material on either side was produced during the discus- 
sion. The result was that t he validity of the adoption w as 
finally affirmed , in a judgment which certainly avoided 
none, and dealt with all the difficulties of the case {y). 
The committee first grappled with the dictum of Mr. 
Justice Dwarkanath Mitter in his judgment in 1868 (z), 



{v) Lakshmappa v. Bamappat 1^ Bom. U. C, (2nd ed.), 364. This decision, 
though delivered in 1875, was not reported till 1878, folld. Knshibai v. Tatia^ 
7 Bom., 221. See as to the point actually decided, B. Ourulingaswami t. 
B. Lakshmappa, 26 I. A., 113; S. C, 22 Mad., 898, ants § 130. 



(w) Bamchandra v. Vithobat W. & B., 129. 



(x) Waman BaghupatiY. Kriahnafi, 14 Bom. (F. B.), 249, folld. Bai Jadar v. 
Bat Mathura, 19 Bom., 668. 

{y) Balasu Ourulinga$wami v. B. Lakshmappa ; Badha Mohun v. Hardai 
Bibi, 26 I. A., 113 ; S. C, 22 Mad., 398. 

(«) 1 B. L. R. (A. C. J.), 221. See, too, Bajendro Narain v. Saroda Soondari, 
16 W. R.f 548, where the same Judge had enunciated the same views in even 
stronger language. 



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PARA. 147.] ONLY OR ELDEST SON. 189 

" that the subject of adoption is inseparable from the 
Hindu religion itself, and all distinction between religious 
and legal injunctions must be inapplicable to it." They 
pointed out that in various instances in the texts on 
adoption, where directions or prohibitions of an undoubt- 
edly religious character were given in regard to particular 
acts, the distinction had been taken ; that in some such 
cases it had never been suggested that the precept had 
any binding legal operation, and that in other cases, 
where the suggestion had been made, it was set aside. 
They examined the two leading texts of Vasishtha and 
Qaunaka, and expressed their opinion that neither of the 
sages intended that an adoption of an only son should be 
an absolute nullity. They pointed out that, in Mr. Cole- 
brooke's translation of Mit. I, 11, §§ 10, 11, 12, he had 
used the words " should not " as regards two prohibitions 
which are certainly recommendatory, and the words 
" must not " in reference to the prohibition of an only son, 
whereas the words were identical, and equally capable of 
expressing obligation or recommendation. This weakened 
the judgment of Sir M. Westropp in 1875, where he had 
relied on the express language of the Mitakshara, and had 
apparently also influenced Sir W. Markby in his decision 
in 1877 (a). They also relied on the widespread and 
recognised usage of making such adoptions in many parts 
of India, and on the circumstance that such adoptions, 
when made by orthodox Hindus, had never been followed 
by any social penalties from the authorities of their caste. 
Finally, as to the argument that it was unsafe to disturb 
a long series of decisions, they said " But their Lordships 
are placed in the position of being forced to differ with one 
set of Courts or the other. And so far as the fear of 
disturbance can affect the question, if it can rightly affect 
it at all, it inclines in favour of the law which gives freedom 
of choice. People may be disturbed at finding themselves 
deprived of a power which they believed themselves to 

(a) MarUck Ohunder v. Bkuggobatty, 8 Cal., 448. 



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190 



LAW OP ADOPTION. 



[chap. V, 



Disoassion as 
to reason of 
conflicting 
asage. 



possess, and may want to use. But they can hardly be 
disturbed at being told that they possess a power which 
they did not suspect, and need not exercise unless they 
choose.*' This decision, which did not profess to govern 
cases in Bombay, was subsequently followed in a case 
from Guzerat where the Mayukha [ranks as an authority 
higher than the Mitakshara (b), 

§ 148. The whole of this judgment was directed to 
orthodox Hindus, who were anxious to obey every positive 
order of their ancient law, and were only anxious to know, 
what was positive precept and what was moral advice. 
Their Lordships did not enquire, and it was not necessary 
to enquire, how it happens that, as a matter of fact, in 
wide districts, and among large classes of the community, 
this and similar passages in the Sanskrit law books are 
treated as absolutely binding, while in other equally 
large districts and classes they are utterly disregarded. 
No Hindu lawyer denies the moral and religious weight 
of these precepts, whatever may be their legal force. 
Why does one set of Hindus bow to these precepts, and 
another set fly in their face ? The answer seems to me 
to be of some interest, not as bearing on Hindu law but 
on Hindu usages, and as strengthening the views advanced 
in Chapter I of this work. To one set Hinduism is a 
religion, the whole of which they are bound to obey. To 
the other it is merely a secular condition, of which they 
adopt and reject exactly as much as they like. 

The absolute unanimity of pundits and Judges in Bengal, 
broken only by a rather unsatisfactory decision of the 
Supreme Court (c) is the natural result of the fact that 
in Bengal Hindu Law, as distinguished from Hindu 
usage, is a living principle which governs every-day life. 
In Bengal alone the heir to an intestate is determined by 
ascertaining the religious benefits which he is capable of 
conferring on the deceased. Mr. Justice Dwarkanath 

(6) Vyas Ohimanlal v. Vyas Bamchandrat 24 Bom., 478. 
(c) Joy money v. Sibosoonderit Falton, 76. 



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PARA. 148.] ONLY OR ELDEST SON. 191 

Mitter may have been wrong in the statement criticised 
by the Judicial Committee, but there can be no doubt he 
was sincere, and that his language reflected the opinions 
of educated Hindus in Bengal. He would have been 
unable to understand that different degrees of obedience 
could be due to different precepts proceeding from the 
same inspired lips, or that an act which drew its whole 
authority from a sacred utterance could be valid, if it was 
done in a manner which the speaker had pronounced to 
be a sin. Jagannatha (d) seems to stand alone among 
Bengal lawyers in taking such a view. 

When, however, we pass to Madras the case is just the 
reverse. The pundits, who were all Brahmans, unite in 
saying that such an adoption is prohibited, but they 
almost invariably add that when done it is effectual. 
The reason was that they could not shut their eyes to the 
fact that such adoptions were practised all round them, I 
and this practice, like many others equally opposed to the ' 
teaching of the sages, was due to the fact that the 
Dravidians had adopted Hindu law without any of the 
beliefs from which it originated. Especially are the ideas 
wanting upon which the religious theory of adoption is 
founded. "The fear of hell and the hope of heaven 
appear in the puranic beliefs ; but this doctrine has very 
little currency beyond the Brahmans and a few of the 
higher castes, and even among these classes the moral 
code of their religion is but vaguely known and of no 
great influence." " It is part of the Brahmanical doctrine 
that a man must have a son to save him from hell, but 
this belief obtains little currency among the generality of 
the people.*' "Homage to remote ancestors is not a 
practice among the Dravidians, though observances are 
paid to relatives recently deceased with the intent that 
they may not return to do harm to the living " (e). 

Id) 8 Dig., 248. 

(e) Cenaas Report of 1891, VHI, 60. 128. Munaal of Madras Adm., I (71). 
Upon a reference by (he Pondioherry Court in 1803 to the Consaltatiye Com- 
mittee, the following profession of faith was set forth : — ** The virtues and the 



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182 LAW OF ADOPTION. [CHAP. V, 

The Pondicherry Court sanctions the disputed adoption 
on the express ground that, though it is opposed to the 
Sanskrit law, it is in conformity with popular usage (/). 
In Western India, so far as the Maj'ukha is recognised, 
it is evident that the Brahmanical theory can have no 
force when a married man, who has even had a son born 
to him, may become an adopted son (g). Until the 
adoption of an only son was tested by the rule of Vasishtha, 
the Bombay Courts were in the habit of allowing it, and 
Mr. Mandlik says " this is consonant to the daily practice 
and the usages of the people" (A). It is a curious thing 
that the first authoritative decision in Bombay, that such 
adoptions were invalid, was in a case between Lingayets^ 
a sect which originated in a religious movement of an 
anti-Brahmanical character (i). When a similar case 
arose subsequently between members of the same sect in 
a regular suit, it was proved conclusively that such 
adoptions were allowed by local custom, and the adoption 
was supported (k). 

In the leading case from Allahaba d, Edge, C. J., supports 
his interpretation of the Sanskrit authorities by asking 
how it happened that if such adoptions were sinful, the 
persons who shared in them were not outcasted, *' parti- 
cularly as they belong to a caste, the members of which 
are such sticklers for caste, and for keeping their caste pure, 
as are the Agarwala Banias of Benares*' (I). It never 
occurred to any one to ask what the real belief of these 
people was. Now it is certain that the majority of these 
\ Agarwala Banias are of Jain origin (m), and that the 

piouB works that men have practiBcd in this, world procure for their bouIs in 
the other world, according to their merit, one of the four d(«greeB of beatitude — 
Salogam (to be with god), Samibam (to be near god), Saroubam (to be like god) 
Sayoutchiam (to be indentified with god). As for the soul of a sinner, it paMes 
into the body of a quadruped or of a bird, according to the heinonsness of iia 
offences, and when it has expiated its faults, it proceeds again to animate a 
human body. Such is the belief of Hindus of all castes and of all sects in regard 
to a future life." Sorg Co. Con., 383, |5 ^. 

(/) Sorg H. L., 181, Co. Con., 876. 

(fl) V. May., iv., 6 § 19. (») Census Report, 1691, XXV, -288. 

[h) Mandlik, 60o. (k) Baaavav.Lingangauday 19 Kom., 438. 

(l) Beni Prasad v. Ewrdai Bihi, 14 AH., p. 86. 

(m) Sherring, Castes of the Hindus, 285. 



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PARAS. 149 & 150.] ONLY OR ELDEST SON. 198 

Jains do not practise any of the skrads or religious/ 
ceremonies for the dead, the due performance of which I 
lies at the base of the religious theory of adoption (n). It 
then the litigants in that case were Jains, they would 
certainly not be outcasted for doing an act which, from 
the Jain point of view, could not be sinful or capable of 
any moral quality. Whether they were Jains or not it is 
impossible to say. But it is curious that the mind of the 
Court was never directed to a question of fact which, if 
answered in one way, would have rendered the whole 
discussion absolutely irrelevant. 

§ 149. Two persons cannot adopt the same boy, even TwoperBoni 
if the persons adopting are brothers. It is, however, S^boy.^* 
suggested by the author of the Dattd.ka Mimamsa that two 
brothers may jointly adopt the son of a third brother, 
so that he may be the dioyarmishyayanay or son of both. 
Mr. W. MacNaghten expresses a strong opinion against 
the legality of such a proceeding (o). 

§ 150. Fourth, the ceremonies necessary to an Ritual 
ADOPTION are stated by Vasishtha as follows : "A person 
being about to adopt a son, should take an unremote 
kinsman, or the near relation of a kinsman, having conven- 
ed his kindred, and announced his intention to the king, and 
having offered a burnt offering, with recitation of the holy 
words in the middle of his dwelling '* (p.) A fuller ritual, 
which, however, is merely an enlargement of the above, is 
given by (^aunaka and Baudhayana, in passages which are 
referred to by writers as the leading authorities upon the 
subject {q). In these much stress is laid upon t he givin g 
and receiving of the boy . Upon this Baudhayana says, 
** Then having performed the ceremonies beginning with 
drawing the lines on the altar, and ending with the placing 

(n) Bhagvaiidas v. Rajmal, 10 Bom. H. C, pp 260, 262, 263. 

(o) Dattaka Mimamsa. i., § 30, ii., § 40—47 ; 1 W. MacN., 77. Where a boy has 
been adopted by one brother, he cannot be adopt-od again by another brother. 
Timma v. Sidilamma, 4 Mysore, 88. 

ip) VuMHhtha, XV., § 6; Mitakshara, i., 11, § 13. 

iq) Baodh., vii., 6 ; V. May., iv., 5, §8, 36-42; Dattaka Mi mam sa, v., §2,42; 
Dattaka ChAndrika, ii. See, too, 2 Stra. H. L., 218; Steele, 45. 

13 



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194 



LAW OP ADOPTION. 



[chap. V, 



0iTiiig and re- 
oeiying. 



of the water vessels, he should go to the giver of the 
child, and ask him, saying, Give me thy son. The other 
answers, I give him. He receives him with these words, 
I take thee for the fulfilment of my religious duties. I 
take thee to continue the line of my ancestors" (r). 
Notioe to " The expression ' king,' in these texts has been explained 

by commentators to signify the chief of the town, or village. 
They seem, however, agreed that the notice enjoined, and 
the invitation of kinsmen are no legal essentials to the 
validity of the adoption, being merely intended to give 
greater publicity to the act, and to obviate doubt regarding 
the succession ** («). 

§ 151. The giving and receiving are absolutely neces- 
sary ; they are the operative part of the ceremony, being 
that part of it which transfers the boy from one family 
into another (t). Where this part was performed by the 
widow, a girl of fifteen who had just lost her husband, it 
was held to be no objection to the adoption that she 
remained in an inner room, and deputed a relation to per- 
form the homa andother parts of the religious ceremony (m), 
and even the physical act of giving away may be similarly 
delegated by a person who would be entitled to perform the 
act himself (v). According to some authorities, nothing 
else is so essential that the want of it will absolutely 
Dfttu homam. invalidate an adoption. Even the datta homam , or oblation 
to fire , though a most important part of the rite in the 
case of the three higher classes, has been held to be a 
mere matter of unessential ceremonial {w). On this 
point, however, there is a conflict of authority. The 



(r) Baudhayana, ii., § 7—9 ; Joarn. As. Soc. Bengal, 1686, art. (jaunaka 
Smriti. 

(a) Suth. Syu , 667, 675; 1 N. C, 117; as to assent of Government, aw/r, 
§ 184. 

{t) Mahashoya Shosinath v. Srimati Kri$hna, 7 I. A., 260; S. C, 6 Cal.. 
381 ; Banganayakamma v. Ahvar Settt, 13 Mad., 214. 

(u) Lakshm^ai v. Bamchandra^ 22 Bom., 690. 

(v) See ante § 132, note (n). 

\w) Veerapsrmall v. Narrain Pillay, 1 N. C, 91, 117; 1 Stra H. L., 96; 8 
Dig., 244, 248; Singamma v. VenkaiaeharlUy 4 M. H. C, 166 ; per cur. Sootrogun 
V. Sabitra, 2 Kn., 290; 2 W. MacN., 190; 1 Gib., 93; see the native authorities 
cited, JoUy, Lect. 169. 



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PARAS. 151 & 162.] CBRBMONIBS IN CASE OP SUDBA8. 1^5 

Dattaka Mimams a. after reciting the ritual prescribed 
by Vasishtha and Qannaka, both of which include the 
oblation to fire, says: "Therefore the filial relation of 
these five sons proceeds from adoption only with observ- 
ance of the forms of either Vasishtha or ^aunaka ; not 
otherwise" {x). And he winds up the chapter on the 
mode of adoption by saying, " It is, therefore, established 
that the filial relation of adopted sons is occasioned only 
by the (proper) ceremonies. Of gift, acceptance, a burnt 
sacrament, and so forth, should either be wanting ^ the 
filial relation even fails " (y). So the Dattaka Chandrika, 
after giving the ritual of Baudhayana for the followers of 
the Taittiri Veda, which also includes the datta homam, 
says, " In case no form, as propoimded, should be observed, 
it will be declared that the adopted son is entitled to 
assets sufficient for his marriage " (^). A Madras Pundit 
says, datta homam is essential to Brahmans, but not to 
the other classes ; and his opinion is stated to be correct 
by Mr. Colebrooke and Mr. Ellis (a). So Mr. Steele says, 
*' Sudras cannot perform any ceremonies requiring Mun- 
tras from the Vedas ** (6). Judging from these passages, 
it would certainly seem that the sacrifice to fire was 
essential to those classes for whom it was prescribed, and 
probable that it was not prescribed for the Sudras. 

§ 152. After a good deal of conflict of decisions, it No religions 

oeromonies for 

appears to be now settled that for Sudras, at all events, Sadras. 
no religious ceremony is necessary ; whether this applies 
to the superior classes seems to be still unsettled. In 
1834 the Judicial Committee said, "Although neither 
written acknowledgments, nor the performance of any 
religious ceremonials, are essential to the validity of 
adoptions, such acknowledgments are usually given, and 
such ceremonies observed, and notices given of the times 
when adoptions are to take place, in all families of distinc- 
tion, as those of Zemindars or opulent Brahmans ; so that 

(x) DatUka. MimftmBa, v., 60. (y) Dattaka Mimamsa, v., ^6. 

(«) Dattaka Chandrika, ii., 16, 17, vi., 3; 2 W. MacN., 198. 
(a) 2 Stra. H. L., 87-89. (6) Steele, 46. 



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196 LAW OP ADOPTION. [cHAP. V, 

wherever these have been omitted, it behoves the Court 
to regard with extreme suspicion the proof offered in 
support of an adoption '* (c). It appears from the report 
of the case in Bengal that the parties were Brahmans. 
It was admitted that no religious ceremonies were per- 
formed. But both in the Sudder Court and in the Privy 
Council their absence was treated as merely a matter of 
evidence, and not as in itself invalidating the adoption. 
As a matter of fact both Courts foimd that the adoption 
had not taken place. In a much later case before the 
Privy Council, where a Sudra adoption was concerned, 
the High Court of Bengal had treated it as an open 
question whether or not a Sudra could be adopted without 
the performance of religious ceremonies, viz., the offering 
of burnt sacrifice and the like. On appeal, the Judicial 
Committee said, " In the case of Streemutty Joymonee v. 
Streemutty Sibosoonderee (Fult., 75), it was held by the 
Supreme Court in Calcutta that amongst Sudras no religi- 
ous ceremony, except in the case of marriage, is neces- 
sary '* (d). In the view taken of the case by their Lord- 
ships point did not arise, and was not decided. The next 
Cmo of Sadras. time the point arose in Bengal between Sudras the High 
Court decided, on the authority of a passage in the 
Dattaka Nirnaya, cited in the Vayavastha Darpana, that 
the performance of the datta homam was essential to an 
adoption even amongst Sudras, and as no such ceremony 
had been performed in the particular case, held the adop- 
tion invalid (e) . In a later case, however, which was also 
between Sudras, the Court professed to treat this decision 
as having gone upon the special facts, which it certainly 
had not done ; and drew a further distinction between 
the two cases, on the ground that " in the present 



(e) Sootrogun v. Sabitra, 2 Kn., 267, 290; S. C. in the Sudder Adawlut, sub 
nomine r Sabitreea v. Sutur Oh tin, 2 S. D., 21 (26). 

{d) Sreevarain Mitter v. Sreemutty, 11 B. L. R. (P. C), 171, 187; S. C, 
19 Suth., 133 ; S. C. I. A. Sup. Vol. 149 : in the High Court, 2 B. L. R (A. C. J.). 
279; S. C, 11 Suth.. 196. 

(«) Bhairabnath v. Maheackandra, 4 B. L. R. (A. C. J.), 162; S. C, Suth., 
168 cited and approved, Sayamalal v. Saudamini, 6 B. L. R., 366. 



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PARA. 153.] CBRBMONIBS OP SUPBRIOR CLAS8BS. 197 

case, the adopted son is a brother's son, a member 
of the same family, in regard to whom the mere giving 
and taking may be sufficient to give validity to the 
adoption " (f) . Finally, express point was referred to 
a Full Bench. It was then fomid that the passage in the 
Dattaka Nimaya,. which had formerly been relied upon as 
showing that a Sadra should adopt with the datta Jiomam, 
proved exactly the opposite ; an essential part of the 
passage having been omitted. The Court accordingly 
answered the question put by saying, " Amongst Sudras 
in Bengal no ceremonies are necessary in addition to the 
giving and taking of the child in adoption " (g). 

§ 153. Whether the same rule holds good in the three CMeofiapMior 
superior classes is, of course, a different question. In 
Madras, it has been expressly decided that even amon g 
Brahmans the datta homam, or any other religious cere - 
noLony, is unnecessa ry (k). The same rule is certainly 
implied in the case in Knapp, cited in the last section, 
though not decided, and the opinion of Jagannatha is to 
the same effect (i). The ruling in the Madras case wad 
affirmed in a later decision where the parties were 
Kshatrias (k), and again in the adoption of a Nambudri 
Brahman (I), In other cases where the parties were 
Brahmans, the same Court doubted the authority of the 
ruling ; but affirmed the adoption on the ground that the 
datta homam had in fact been performed, though at an 
interval of five years after the giving and receiving (w). 
In those cases it would appear that the giving and receiv- 
ing had been made with reference to a formal adoption to 

(/) Nittianandy. Kithna Dyal, 7B.L. R., 1; S.C, ISSnth., 300. As to the 
liwt point MaggeBted, sec ante § 14 J. 

(y) BehartLal r. Indramani, 13 B. L. B., 401; S. C, 21 Sath., 285, affd. in 
Pnvj Cooncil sub nomine Indramani v. Behari Lallt 7 L A., 24 ; S. C, 6 Cal., 
T!0,acc. Dyamoyee v. Basbeharfe, 8.D. of 1863, 1001; Perka$h Ohundery. 
Dhunmonnee, S. D. of 1863, 96 ; Ahoar v, i2ama«amy, 2 Mad. Deo., 67 ; Thanga- 
thanni ▼. Biirnu Mudali, 5 Mad., 868. 

(h) SingamnuL ▼. Veneatacharlu, 4 Mad. H. C, 166 ; 1 Stra. H. L., 96 ; contra^ 
2 Stra. H. L., 181. 

{i\ 3 Dig., 244, 248. {h) Ohandramala ▼. Muhtamala, 6 Mad., 20. 

\l) Shankaran ▼. Kesaoan^ 16 Mad., 7. 

(m) Venkaia v. SubJuidra, 7 Mad., 648; Subbarayar t. Suhbammal, 
21 Mad., 497. 



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198 LAW OP ADOPTION. . [CHAP. V, 

take place afterwards. This adoption, when it took place, 
was duly accompanied by the datta homam. It may 
be a question whether the decision would have been the 
same if the adoption had been completed without per- 
forming or intending to perform the datta homaniy and 
that ceremony had been appended at a later period, pro 
majori cauteld. In 1884 a case arose in which a Brahman 
had adopted a boy of the same gotra as himself without 
the homam ceremony. The Court seemed to treat the case 
of Singamma v. Venkatach<irlu as of little weight, point- 
ing out that it was not argued on both sides, and that 
Jagannatha, who was cited, was no authority in Southern 
India. They held that in this case the adoption was good, 
because both parties were of the same gotra, relying upon 
the authority of Mr. Ellis in 2 Strange's Hindu Law, 
p. 155 (n). Both in this case and in the later one of 
Ranganayahamma v. Alwar Setti (o), the Judges relied on 
the dictum of the Judicial Committee in Mahashoya 
Shosinath v. Srimati Krishna (p), where their Lordships 
say : '' All that has been decided is that amongst Sudras 
no ceremonies are necessary in addition to the giving and 
taking of the child in adoption. The mode of giving and 
taking a child in adoption continues to stand as Hindu 
law and usage, and it is perfectly clear that amongst the 
twice-born classes there could be no such adoption by 
deed, because certain religious ceremonies, the datta 
homam in particular, are in their case requisite. ** So the 
pundits in two Bengal cases seem to have laid down that 
the datta homam was essential in the case of an adoption 
among the thi-ee superior classes (q), and the same state- 
ment was made more recently by Mr. Justice Mitter (r). 
It seems also to have been assumed that this was the 
general rule in a Bombay case. There it had been omitted 

(n) Oovindayyar v. Dorasami, 11 Mad., 5. (o) 13 Mad., 214, 219. 

(p) 7 I. A., 250, p. (266). 

(a) Alank Manjari v. Fakir Chand, 6 8. D., 366 (418); Bulluhakant r. 
Kuhertprea, 6 S. D., 219 (270). 

(r) Luchmun v. Muhun, 16 Sath., 179 ; soe, too, Thakoor Oomraor. Tkakoo- 
ranee, N.-W. P. H. C, 1868, 108. 



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PARA 154.] INTENTIONAL OMISSION OF CEREMONIES. 100 

in the case of an adoption of a brother's son. The pandits 
held the adaption nevertheless valid under a special text 
of Yama. " It is not expressly required that burnt sacrifice 
and other ceremonies should be performed on adopting 
the son of a daughter, or of a brother, for it is accomplished 
in those cases by word of mouth alone " («). In Allahabad, 
where a similar case arose among Dakhani Brahmans, 
the inclination of some of the members of the Court seems 
to have been to hold that no religious ceremonies were 
necessary. The decision, however, was limited to holding 
that, when the boy was the son of a daughter or of a 
brother, a gift and acceptance was sufficient (t). 

The Pondicherry Court has repeatedly laid down that 
the performance of the datta homam, and the accom-l 
panying religious ceremonies, is essential to the validity 
of an adoption. M. Sorg, however, doubts the application 
of this rule to any classes which can be shown not to have 
adopted the Brahmanical law in its religious bearing {u). 

So far as it is possible to reconcile these conflicting 
decisions, they seem to point to the conclusion that, among 
the twice-born classes, the datta homam is necessary, 
unless the adopted boy is of the same gotra as his adopter, 
or unless a usage to the contrary can be established. In 
Madras there is also high authority for limiting the appli- 
cation of the rule to Brahmans. 

§ 154. In any case it is quite clear that if the omission rintentionfti 1 

of the ceremonies has been intentional, with a view to V L-i 

leaving the adoption absolutely unfinished ; or, if from 
death, or any other cause, a ceremony which had been 
intended has not been carried out, no change of condition 
will take place, even though the ceremonies which have 

(») Huebut Bao v. Govindrao, 2 Bor., 76, 87 [83] ; Steele, 46. This is in 
accordance with many anthorities cited by Dr Jolly, <i 169. See W. & B., 928, 
10^. In Bavji Vinayakrav v. Lakshmibai, 11 Bom., 381 (393), the Court, 
while not deciding the point, expressed a strong opinion that the datta homam 
waa essential among Brahmans. In a later case the Bombay High Goui-t followed 
the anthorities stated in the earlier part of this note; Valubai v. Govivd^ 
24 Bom.. 218. 

{t) Ayma Bam v. Madho Baoy 6 All., 276. 

(u) Sorg H. L., 138; Co. Con., DO, 170, 374. 



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BOO LAW OP ADOPTION. [CHAP. V, 

been omitted might lawfully have been left out. Because 
the mutual assent, which is necessary to a valid and 
completed adoption, -has never taken place (v). So an 
adoption by will, without the performance of the necessary 
acts, will be invalid as an adoption. If the testamentary 
adoption is followed by a bequest to the person intended 
to be adopted, its validity will depend on the question, 
whether it was made to the devisee on the assumption 
that he was clothed with the character of an adopted son, 
or was an unconditional bequest to him, as persona 
designata (w). And even in cases where giving and 
receiving are sufficient, there must be an actual giving 
and receiving. A mere symbolical transfer by the exchange 
of deeds would not be sufficient (x). 

^mmi9h. In the Punjab and among the Jains, no ceremonial 

whatever is required, the transaction being purely a matter 
of civil contract (y). Among the Moodelliars of Northern 

^'•y**"^ Ceylon the only ceremonial appears to be the drinking of 

saffron water by the adopting person (z), 

§ 155. In many of the cases previously discussed, where 
it was necessary to admit that an adoption had been made 
in violation of a rule laid down by ancient authorities, 
an attempt has been made to support the adoption on 
the principle of Factum valet quod fieri non debuit. The 
existence of this rule in other districts than that of Bengal 
has been expressly affirmed by the Privy Council (a). The 
limits within wh^ch the rule can be applied have been 
much discussed in several cases in Bombay and in Allaha- 
bad. In the former Presidency it has been said of this 
rule '' That its proper application must be limited to cases 

{v) 2 W. MaoN , 197 ; Unerchunder v. Basbeharee, 8. D. of lb62, 1001 ; Banes 
Per$had v. Moonthee Syudy 25 Suth., 192; per curiam 24 Bom., p. 226. 

{w) Sorg H. L.. 186; Co. Con.. Ill, post § 180 182. 

(«) Sre&narain Mitter v. Sreemutty KUhen, 2 B. L. R. (A. 0. J.), 279; S. C, 
11 Sath , 196; Mhaahoya SJioHnath ▼. Srimati Krishna, 7 I. A., 260; S. C. 
6Cal.,88l. 

iy) Panjab Customs, 82, Pniijab Customary Law, III, 82. LaknU Chand t. 
Oaito Bal, 8 All., 819. 

(#) Thesawaleme, ii. 

(a) XJma Deyi t. Ookoclanund, 6 I. A., p. 68; 8. C, 8 Cal., p. 601. 



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PABA. 155.] DOCTRINE OP PACTUM VALET. 201 

in which there is neither want of authority to give nor to 
accept, nor imperative interdiction of adoption. In cases 
in which the Shastra is merely directory and not manda- 
tory, or only indicates particular persons as more eligible 
for adoption than others, the maxim may be usefully and 
properly applied, if the moral precept or recommended 
preference be disregarded '* (b). 

In an Allahabad case (c) where all the previous deci- 
sions were reviewed by Mahmood, J., he said : *' In the 
case of adoption there are, of course, questions of formali- 
ties, ceremonies, preference in the matter of selection, and 
other points which amount to moral and religious sugges- 
tions. Such matters, speaking generally, are dealt with 
in the texts in a directory manner, relating to what I may 
perhaps call the modus operafidi of adoption. To such 
matters, which do not aflfect the essence of the adoption, 
the doctrine of factum vcdet would undoubtedly apply 
upon general grounds of justice, equity and good con- 
science, and irrespective of the authority of any text in 
the Hindu law itself. There may, indeed, be codes where 
the express letter of the texts renders that which would 
in other systems be regarded as a matter of form, a matter 
of imperative mandate or prohibition affecting the very 
essence of the transaction." "Adoption under the Hindu 
law being in the nature of gift, three main matters con- 
stitute its elements apart f^om questions of form. The 
capacity to give, the capacity to take, and the capacity to 
be the subject of adoption, seem to me to be matters 
essential to the validity of the transaction, and, as such, 
beyond the province of the doctrine of factum valet'' 
And similarly, in a case where the Judicial Committee 
had to consider the application of this maxim to the adop- 
tion of an only son, they said : *' No system of law makes 



{h) Lakihmappa ▼. Ramava, 12 Bom. H.C., p. 398, approved and foi/owed; 
per curiam, 3 Bora., 298; 10 Bom., p 86; W. & B., 90, and by the Jadicial 
Ccmimittee, t36 I. A., p. 144, where they tay *' the trath is that %he two halves of 
the maxim apply to two different departments of life." 

(e) Ganga Sahai ▼. Lekhraj Singh, 9 AH., 253, pp. 296, 297. 



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fl02 



LAW OP ADOPTION. 



[chap. V, 



Application of 
ihete roles. 



the province of legal obligation co-extensive with that of 
religious or moral obligation. A man may, in his conduct 
or in the disposition of his property, violate the plainest 
dictates of duty. And yet he may be within his legal 
rights. The Hindu sages doubtless saw this distinction as 
clearly as we do, and the precepts they have given for the 
guidance of life must be construed with reference to it. If 
a transaction is declared to be null and void in law, 
whether on a religious ground or another, it is so ; and if 
its nullity is a necessary implication from a condemnation 
of it the law must be so declared. But the mere fact that 
a transaction is condemned in books, like the Smritis, does 
not necessarily prove it to be void. It raises the question, 
What kind of condemnation is meant " (d). 

§ 156. In accordance with these rules, the principle of 
factum valet has been held to be ineffectual where the son 
was given or received by a mother who was destitute of 
the necessary authority («), or where the boy taken in 
adoption was one whose mother could not have been 
married by the adopting father (/). It has been held to be 
effectual where a preferential relation has been passed over 
in favour of the son of a stranger (g), or where the limit of 
age fixed by the Dattaka Miraamsa has been exceeded (A). 
On the other hand, the above principles give no help in a 
case where it is possible to hold different views on the 
question, whether a particular direction is, or is not so 
imperative as to be of the essence of an adoption. For 
instance, not only different Courts, but the same Court 
at different times, have disagreed as to the applicability of 
the doctrine oi factum valet in cases of the adoption of an 
only son (i), or of a member of the superior classes, where 
the prescribed religious ceremonies were omitted (k). Of 



(d) Balasu OurulinaaMwami v. B. Ramalakthmammat 26 I. A., ^. 139. 
{e) Rangabai v. Bnagirthibai, 2 Bom., 377 ; Narayan B€ibaj% v. Nana 
Manohar, 7 Bom. H. C. A C, 163. 
If) Qopal Narhar v. Banmani Oanesh^ 8 Bom., 273. 
ig) Uma Deyi r. Ookoolanundy 6 I. A., 40 ; S. C, 8 Cal., 587. 
(h) Oanga Sahai v. Lekhraj Sivgh. 9 All., 254. 
(t) Ante §§ 144—148. {k) Ante § 153. 



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PARAS. 156 & 157.] EVIDENCE OP ADOPTION. 204 

course, completely different considerations arise where a 
direct prohibition has been worn away by conflicting 
usage. Probably no Court, except one governed by the 
authority of the Mayukha, and of the practices recognised 
by it, would give effect to the adoption of a married 
Brahman (I). 

§ 157. Fifth, THE EVIDENCE OF AN ADOPTION. — There Presumption as. 
. . .to adoption. 

is no particular evidence reqmred to prove an adoption. 
Those who rely on it must establish it like any other fact, 
whether they are plaintiffs, or defendants (m). In one 
respect the}' are in a favourable position : that is, in con- 
sequence of the peculiar religious views of Hindus. The 
probability is that a sonless Hindu will contemplat e 
a doptio n ; and this probability is increased if he is advanc- 
ed in years, or sickly ; if he has property to leave behind, 
as regards which he would naturally wish for a lineal 
successor ; and still more if, from family dissensions, the 
person who would otherwise be his successor is a person 
whom he would not be likely to desire. In countries 
governed by the Mitakshara law the further circumstance 
would arise that his widow, supposing him to leave one, 
would be dependent for her maintenance on a collateral, 
perhaps a distant, member of the family. If, therefore, 
he was on affectionate terms with her, he would naturally 
wish to leave her in the more advantageous position of 
mother and guardian of an adopted son (n). Similarly, an 
opposite state of things, such as the youth of the adopting 
father, the probability of his having issue by his wife, or 
the like, would render the fact of the adoption unlikely (o). 
No writing is necessar y ; though, of course, in case of a Writing. 

{1} Dharma Dagu v. Bamkriahna Ohimnaji, 10 Bom., 80. 

(m) Tarini Charan v. Saroda Sundari, 3 B. L. R. (A. C. J.), 146 ; S. C, 11 
Snth., 468 ; Hur Dyal Nag v. Boy Krithto, 24 Suth., 107. 

(n) 1 Hyde, 349 ; Huradhun v. Mutharanath, 4 M. I. A., 414 ; S. C, 7 Suth. 
(P. C.), 71 ; where the Privy Coancil reversed concurrent decisioits of the Lower 
Conrte, finding ajtainst the adoption ; Soondur Koom4iree v. Gudadhur, 
7M.I. A., 64; 8, C , 4 Suth. (P.O.), 116; Bayhunadha v. BroBo Kishoro, 
8 1. A , 177 ; 8. C, 1 Mad., 69 ; 8. C, 25 Suth., 291. See as to force of presump- 
tion in favour of adoption, per Mitt^-r, J., Rajendrn Narain v. Saroda, 15 Suth., 
548 ; Harman ChuU Singh y. Koomar Ounsheaniy 2 Kn., p. 220. 

(o) Mt. Sahitreea v. Sutur Ohun, 2 S. D., 21 (26); affirmed, 2 Kn., 267. 



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204 



LAW OP ADOPTION. 



[chap. V, 



Effeot of res 
judicata. 



large property, or of a person of high position, the absence 
of a writing would be a circumstance which would call 
for strict scrutiny, and for strong evidence of the actual 
fact (p). Nor is it even in all cases necessary to produce 
direct evidence of the fact of the adoption ; where it has 
taken place long since, and where the adopted son has 
been treated as such by the members of the family and in 
public transactions, every presumption will be made that 
every circumstance has taken place which is necessary to 
account for such a state of things as is proved, or admitted, 
to exist iq). 

§ 158. It has been held that a decision in favour of an 
adoption, in a suit in which it was in dispute, is prinid 
facie evidence of the fact of the adoption, even as against 
persons who were no parties to the suit (r). It has even 
been held that a valid regular judgment of a competent 
Court upon the status of an alleged adopted son is a 
judgment in rem, which is binding and conclusive as against 
the whole world, unless fraud, or collusion, can be made 
out; and that a summary adjudication of the same nature, 
though not conclusive, is primd facie evidence of the facts 
adjudicated upon, sufl&cient to throw the burthen of 
disproving the same upon the opposite party (s). But 
this doctrine is now over-ruled. The binding character 
of judgments of the Courts of India upon questions of 
personal status was exhaustively examined by Mr. Justice 
HoUoway in a Madras case, where a decree upon a ques- 
Not ajudgment tion of division was relied upon as a judgment in rem (t), 
and later in a Bengal case, where the point decided in 3 
Suth., 14, was referred to a Full Bench. It had been held 



wnrenu 



g: 



•2 Kn., 290 ; Ondy Kadaron v. Aroonachellaf Mad. Deo', of 1867, p. 53 

(q) Perkash Chunder v. Dhunmonnee^ S. D. of 1853, 96 ; Nittianavd v. 
Krishna Dyal, 7 B. L. R., 1 ; S. C, 15 Sath., 300 ; Bajendro Nath ▼. Jogendro 
Nath, 14 M. I. A., 67 ; 8. C, 16 Sath. (P. C), 41 ; Hur %a2 r. Boy KrUhto, 
24 Sath., 107; Sabo Bewa v. Nuboghun, 11 Suth., 380; S.-C, 2 B. L. R., 
Appx., 51 ; Vya$ Chimanlal v. Vyas Bamchandra^ 24 Bom., 476. 

(r) Ssetaram v. Juggobundoo, 2 Suth., ]6H. 

{8) Kitiomoneer. OolUctor of Moorshedabad, S. D. of 1869, 550; HajkrUto 
V. KUhoree, 8. Suth., 14. 

{t) Yarakalamma v. Anakala, 2 Mad. H. C, 276 ; see also Oopalayyan r. 
Baghupati Aiyyan, 8 Mad. H.C., 217. 



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PARA. 158.] EVIDENCE OF ADOPTION. 205 

upon the authority of that decision, where a reversioner 
had brought a suit against a widow as heiress, to set aside 
alienations by her, and to establish his title as rever- 
sioner, and the Court had found that her husband had 
been adopted, and therefore that the plaintiff was next heir, 
that this finding was conclusive against a person who was 
no party to that suit, and who denied the adoption. Pea- 
cock, C. J., after referring to Mr. Justice HoUoway's judg- 
ment, said : " I concur with him entirely in the conclusion 
at which he arrived, viz., that a decision by a competent 
Court that a Hindu family was joint and undivided, or, upon 
a question of legitimacy, adoption, partibility of property, 
rule of descent in a particular family, or upon any other 
question of the same nature in a suit inter partes, or, more 
properly speaking, in an action in personam, is not a jud g- 
ment in rem or binding upon strangers, or, in other words, 
upon persons who were neither parties to the suit nor 
privies. I would go further, and say that a decree in such 
a case is not, and ought not be, admissible at all as evi- 
dence against strangers " {u). 

But though the decree itself might neither be conclusive, importwit as 
nor admissible, as evidence, the proceeding in which the *^ 
decree took place might be very important. For instance, 
when the fact of any adoption at all having taken place 
was in dispute, it would be most important to show that 
the alleged adopted son had put forward his title as owner 
of, or interested in, the property, by preferring or defend- 
ing suits, or proceedings in the Kevenue or Magisterial 
Courts, relating to the property ; just as his failing to do 
so would be important the other way. Again, if those who 
now denied his title were shown to have been cognisant 
of, or to have joined him in, such transactions, the 
evidence would be still stronger in his favour. 

(u) Kanhya v. Radha Churn, 7 Suth., 838 ; S. C, B. L. R., Sup. Vol., 662 ; 
followed in Jogendro Deb v. Funivdro, 14 M I. A., 367 ; S.C, 11 B. L. R , 244 ; 
S. C, 17 Suth., 104 ; Katama Nachiar v. Bajah of Shivagunga, 9 M. I. A., 539 ; 
8. C, 2 Suth. (P. C), 31 ; Jumoona Dassya v. Bamasoonderai, 3 I. A., 72, 84; 
S. C, 1 Cat., 289. Such a decree would now he admissihie in evidence under n. 18 
of the Indian Evidence Act, to the extent stated in that Fet lien. 



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•206 LAW OP ADOPTION. [CHAP. V, 

Lapee of time § 159. Lapse of time may operate in two ways : First, 
as strengthening the probability of an adoption. Secondly, 
as barring any attempt to set it aside. In the first case, it 
goes to show that the adoption was valid ; in the second 
case, it prevents the results which would follow from hold- 
ing that it was invalid. 

9A evidence . First, it is evident that where a length of time has 

elapsed since an alleged adoption, and that adoption has 
been treated by the family, and by the society in which the 
family moves, as a valid and subsisting one, this is in 
itself strong evidence of the opinion of those acquainted 
with the facts that everything had taken place necessary 
to a valid adoption. It is like that repute which is always 
so much relied on in cases of disputed marriage, or legiti- 
macy (t?). But it is evident that the force of the testimony 
lies in repute prevailing through a long period of time, not 
upon the time itself. If, therefore, it appears that the 
adoption was kept a secret, or that being asserted on one 
side, it was simply ignored on the other, and that no action 
was ever taken upon it, nor any course of treatment 
pursued in respect to the alleged adopted son, different 
from that which would have prevailed if no adoption had 
been set up, then there is no repute, and the longer the 
time during which such a state of things lasts the greater 
is the evidence against the adoption. 

Where adoption Seccmdlu, such repute can have no effect whatever when 

admittedly in* «? i ^ 

valid* the admitted facts show that there has been no vahd 

adoption, e.g., in the case of the adoption of a sister's son 
by a Brahman, or of a son by a man who had one living. 
But there might be facts, or a course of dealing which, 
though they could not render the adoption valid, would 
prevent certain persons from disputing it. A bar of this 
sort would arise in two ways : (1) by way of estoppel ; 
(2) by way of the Statute of Limitations. 

(v) BajendroNath v. Jojendro Nath, 14 M.I. A., 67 ; S.C, 16 Suth. (P. C), 
41 ; 8. C, 7 B. L. R., 216; Anandrav Sivaji v. Oanesh Eahvant, 7 Bom. H. C, 
Appx. 83. 



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PARAS. 159 & 160.] ACQUIB8CBNCB AND ESTOPPEL. 90T 

§ 160. First. — A merely passive acquiescence by one EffeoiofMqiii- 
person in an infringement of his rights by another person, 
or in an assertion of an adverse right by another person, 
will not prevent the former from afterwards maintaining 
his own strictly legal right in a Court of law, provided 
he does so within the period of limitation fixed by the 
law. The reason is that the law gives him a specified 
period during which he may, if he choose, submit with 
impunity to an encroachment on his rights, and there 
is nothing inequitable in his availing himself of this 
period. But it is d ifferent if his acquiescence amoimt s 
t o an_ active consent to conduct on the part of another o f 
which he might justly comp lain. If by his own behaviour 
he encourages another toHSeTieve that he has not the 
right which he really possesses, or that he has waived 
that right ; or if by representations, or acts, he induces an- 
other to enter upon a course which he would not otherwise 
have entered on, or leads him to believe that he may enter 
on that course with safety, then he will not afterwards be 
allowed to assert any rights which are inconsistent with, 
or infringed upon by, that new state of things which he 
himself has been influential in bringing about. And this 
is equally so whether the right he is asserting is a legal> 
or an equitable, right. For it would be unjust that after \ 
he had by his own conduct induced another to alter his | 
position, he should afterwards be allowed to complain of I 
the very thing which he had himself brought about {w) . ^ 
This doctrine has been applied in India to cases of invalid 
adoption. In one, the adoption, being that of a sister's 
son by a Brahman, was held to be absolutely invalid. In 
another, in Western India, being the case of a Brahman 
adopted after upanayana and marriage, the Court declined 
to decide the question of invalidity. In both cases they 

{w) Rama Bau v. Baja Rau^ 2 Mad. H. C, 1 14 ; Peddamuthulaty v. iV. Timma 
Beddtf, %b 270; Bajan v. Baauva Chetti, ib. 428, where the English cases are 
examined, and the distinction between legal and equitable rights and the mode 
in which they are barred, is pointed out; Taruck Chunder v. Huro Sunkur, 22 
Sath.,267 ; Mohori Bibee v. Dharmodas, 301. A., 114 ; Narsingdaa v. Bahiman- 
bai, 2d Bom., 440. 



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908 LAW OP ADOPTION. [CHAP. V^ 

were of opinion that the objecting party was estopped 

(from disputing the adoption, since he had himself not 
only acquiesced in it, but in one case had encouraged it» 
and concurred in it, at the time it took place ; and in 
another had, by treating the adopted son as a member 
of the family, induced him to abandon the right in his 
natural family which he might otherwise have claimed (x). 
The law of estoppel in India now rests on the Evidence 
Act, I of 1872, s. 115, as to which the Judicial Committee 
say iy) : " the section of the Evidence Act by which the 
question must be determined does not make it a condition 
of estoppel resulting that the person, who by his declaration 
or act has induced the belief on which another has acted, 
was either committing or seeking to commit a fraud, or 
that he was acting with a full knowledge of the circum- 
stances, and under no mistake of apprehension. ** *' What 
the law and the Indian statute mainly regard is the 
position of the person who was induced to act ; and the 
principle on which the law and the statute rest is, that it 
would be most inequitable and unjust to him that if 
another, by a representation made, or by conduct amoimt- 
ing to a representation, has induced him to act as he would 
not otherwise have done, the person who made the re- 
presentation should be allowed to deny or repudiate the 
effect of his former statement, to the loss and injury of the 
person who acted on it. If the person who made the state- 
ment did so without full knowledge or under error, sibi 
imputet. It may in the result be unfortunate for him, but 
it would be unjust, even though he acted under error, to 

ix) Gopalayyany. Iiaghupatiayyan,7 Mad. H.C.^2rtO] Sadaahiv v. Hari 
Moreahvarfll Bom.H. C, 190; BavJiVfnayakravv.Lakshmibai^llBom.j^SX, 
396 ; Kannamal v. Varaaami, 16 Mad., 486; Santappayya v. Hangappayya^ 18 
Mod., 397, 64 ; see Sukkbasi v. Oum/tn, 2 All., 366, where it is not clear whether 
the Court meant to lay down that a valid adoption once made coald not be 
cancelled, or that a person, who had once deliberately made an adoption, was 
extopped from asserting that it was originally invalid. In Kuverji v. Babaif 19 
Bom., 874, the Court xeemcd to think that no change of position had been 
produced by the acts of the widows in putting forward an adoption. 

(y) Sarit Chunderv. Gopal Chnnder, 19 I. A.. 208, p. 215; S. C, 20 Cal., 
206, overruling Oanga Sahai v. Hira Singh, 2 All., 809, and Vishnu and 
Krishnan, 7 Mad, 8. See also Mohori Bibi v. Dharmodaa, 30 I. A., 114 ; S. C, 
80 Cal., 539. 



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PABA. 161.] STATUTE OP LIMITATION. 909 

throw the consequences on the person who believed his 
statement, and acted on it as it was intended he should do." 
Nor does there seem to be any reason why this doctrine 
shouldbelimited to cases where the adoption has been acted 
on for such a period as makes it final and irrevocable as 
regards the adoptee (z). Even if the invalidity of the 
adoption was such that the person adopted was not legally 
excluded from his natural family, he would necessarily be 
driven to legal proceedings to affect his return into it ; he 
might be met by the Statute of Limitations, and so com- 
pletely defeated : or might find that from change of 
circumstances his position, when restored to his natural 
family, wa« very different from what it would have been 
if he had never left it (a). It must, however, be remem- 
bered that estoppel is purely personal, and that it cannot 
affect any one who claims by an independent title, and 
who is not bound by the acts of the person estopped (6). 

§ 161. Secondly. — The Statute of Limitations will statute of Limi. 
also be a bar in some cases to an attempt to set aside a 
disputed adoption, that is, it will bar a suit to recover 
property held under colour of an adoption. The important 
question here will be, f rom what time does the statute 
run ? The answer will be, f rom the time the party seek - 
ing to set it aside is injuriously affected by it . Where a 
person would be entitled to immediate possession, but for 
the intervention of one (Claiming as adopted son, of course 
the statute must run at the very latest from the time at 
which the title to possession accrues ; because from this 
time, at all events, the possession of the adopted son must 
be adverse (c). But there are cases of greater difficulty, 
where an adopted son is in possession, but the person 
whose rights would be affected by the adoption is a 
reversioner, who is not entitled to immediate possession. 

(z) See a case in which such a view was. I think, erroneously laid down. 
Parvatibayamma v. Jiama Krishna, 18 Mad., 146. 

\a) See per cur.y Rajendro Nath v. Jogendro Nathj 14 M. I. A , 77; S. C 15 
Suth. (P. CX 41 ; S. C, 7 B. L. R., 216. 

(&) Lala Parhhu Lai v. Mylne, 14 Cal., 401, 19 I. A., pp. 209—212. 

(c) Malapa v. Namsama^ 17 Mysore, 180. 

14 



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210 LAW OP ADOPTION. [cHAP. V, 

An instance of this sort is the case of an adoption by a 
widow who is in as heir to her husband, 
time from which K 162. On this point there was a direct conflict of autho- 
nty. In several cases previous to 1869 it was held that 
the statute ran from the time at which the adopted son 
was put in possession as such, with the cognisance of 
those whose rights would be affected by his adoption, and 
in such a public manner as to call upon them to defend 
their rights (d). The whole series of authorities, however, 
was reviewed in a case which was referred to the decision 
of the Full Bench of the High Court of Bengal. There the 
ancestor died leaving a widow, who adopted in 1824, and 
survived him till 1861. In 1866 the suit was commenced 
by the daughter's son of the ancestor, who claimed the 
property, alleging that the adoption was invalid. It was 
admitted that the adopted son and his son, the then 
defendant, had been in possession by virtue of the adop- 
tion since 1824. The plaintiff's suit was dismissed as 
barred by limitation. But this decision was reversed by 
the Full Bench, who held that the statute did not begin 
to run till the death of the widow (e). That decision was 
given under the Limitation Act XIV of 1859. Act IX of 
1871, Sched. II, contained the following provision Art. 
129 : " To establish or set aside an adoption — twelve years 
from the date of the adoption, or (at the option of the 
plaintiff) the date of the death of the adoptive father." 
A suit was brought to recover property held adversely to 
the claimant by a person who had been admittedly adopt- 
ed by the widow of the last male holder. Much more 
than twelve years had elapsed since the death of the 
husband, or since the adoption, but much less since the 
death of the widow. The adopted son had admittedly 
been placed in open adverse possession more than twelve 
years before suit and had been recognized by the plaintiffs 

{d) Bhyruh Ohunder v. Kalee Kishwur^ S. D. of 18o0, 369, followed in various 
other cases which ^ere examined in the one next cited. 

{e) Srinath Oangopadhya v. Makes Chandra, 4 B. L. R. (F. B.), 3 ; 8. C, 12 
Snth. iF. B.), 14; sub nomine^ Sreenath Oangooly v. Moheth Chunder. 



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PABA. 162.] RESULT OP ADOPTION. 



211 



themselves as legally in possession in such capacity. The 
plaintiffs contended that they were entitled to sue for 
possession within twelve years of the death of the widow, 
exactly as if she had made an alienation to the defendant. 
The latter contended that the suit was barred under Art. 
129, inasmuch as the plaintiff could not recover without 
setting aside the adoption, and in fact the only issue 
recorded was as to its validity. The Judicial Committee, 
reversing the judgment of the Bengal High Court, held 
that the suit was barred, as the expression to ** set aside an 
adoption '* had been for many years applied in the ordi- 
nary language of Indian lawyers to proceedings which 
bring the validity of an alleged adoption under question, 
and applied indiscriminately to suits for possession of 
land and to suits of a declaratory nature. The present 
Limitation Act XV of 1877, § 118 provides a period of six 
years, for a suit "to obtain a declaration that an alleged 
adoption is invalid, or never in fact took place,*' the 
statute to run from the time ** when the alleged adoption 
became known to the plaintiff." Their Lordships declined 
to say whether the alteration of language in the later Act 
denoted a change of policy, or how much change of law it 
affected. They proceeded, however, to express themselves 
strongly against the probability that the same statute 
would apply two different periods of limitation for a suit 
declaring the invalidity of an adoption, and a suit to 
recover possession of land founded on such invalidity (/). yu^<^^^^ • 
In a later case upon the same statute, where the suit was 
also to recover possession against a person holding under an 
invalid adoption, and where it had been argued ineffectu- 
ally that the suit was governed by Act XV of 1877, Art. 118, 
and not by Art. 129 of Act IX of 1871, the Judicial Com- 
mittee said : " It seems to be more than doubtful whether, 
if these were the words of the statute applicable to the 
case, the plaintiff would thereby take any advantage (g), 

{/) Jagadamba Chowdhraniv. Dakhina Mohun^ 13 I. A., 84,94,— explaining 
Baj Bahadur v. Achumbit Lai, 6 I. A., 110; folld. per cur., Malkatjun v. 
NarhaH, *JfJ I. A., p. 230; 8. C, 25 Bom., p. 362. 

{g) Mohesh NarcUn v. Taruck Nath, 20 1. A., 30, at p. 87 ; S. C, 20 Cal., 487. 



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212 LAW OF ADOPTION. [cHAP. V, 

Snits under Act § 163. The Only case in which the effect of Art. 118 
XV of 1877. ^£ ^^^ ^y ^£ ^^rjrj jj^ ^ g^j^ f^j, possession of property 

has arisen before the Privy Council was that of Luchmau 
Lai V. Kanhya Lai (h). There the plaintiff sued after the 
death of the widow for a declaration of her rights and for 
possession of the husband's estate, notwithstanding an 
adoption by the widow. The argument rested upon Art. 
118, which was assumed to govern the case. It was held, 
however, to be inapplicable, first, because the widow ha»d 
adopted to herself and not to her husband ; and, secondly, 
because the plaintiff was not shown to have had knowledge 
of the adoption within six years of the suit. No argument 
was raised as to whether Art. 118, or Art. 141 ought to be 
applied. In a Madras case (i) a widow sued for possession 
of her husband's property as against a son alleged to have 
adopted by him. The husband died in 1884. The adoption 
came to the knowledge of the widow in 1885, and the 
suit was begun in 1893. The defence was limitation 
under Art. 118. The High Court adopted the views of 
the Privy Council as laid down in 13 and 20 I. A., and 
decided that Arts. 129 of the Act of 1871 and 118 of the 
Act of 1877 meant exactly the same thing, and should be 
construed in the same way. On the other hand, in the 
case of suits brought by reversioners for possession of 
property simply, or for a declaration that an adoption was 
invalid followed by a prayer for possession, the Courts of 
Allahabad and Calcutta have held that Art. 118 was in- 
tended only to apply to a suit for a declaration of rights, 
and that the failure to bring such a suit within six years 
was no bar to a suit for possession within twelve years 
under Arts. 140 and 141 (A;). The High Court of Bombay 
has varied in its decisions. It first ruled in accordance 
with the last named Courts in the case of Fannyamma v. 

(h) 22 I. A., 61 ; 8. C, 22 Cal., 609. 

(t) Parvathe v. Saminatha, 20 Mad., 40 ; folld. Ayyadorai v. Solai^ 24 Mad., 
405; Batnamaaari v. Akilaiuiammalf'l(i Mad., 291. 

(k) Baadeo Gopal, H All., 644 ; Natthu Singh v. Oulab Singh, 17 All., 167; 
Parbhu Lai v. Mylne, 14 CaU, 401 ; Ramchandra Mukerjee v. Banjit Singh, 
27 Cal., 242. 



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PARA. 163.] RESULTS OP ADOPTION. 213 

Manjaya (0» but this decision was overruled by a Full 
Bench of the same Court in Strinivas v, Hanmant (w), 
where the rule was laid down as follows by Tyabji, J. : 
** Article 118 applies to every suit where the validity of 
the defendant's adoption is the substantial question in 
dispute, whether such question is raised by the plaintiff in 
the first instance, or arises in consequence of the defendant 
setting up his own adoption, as a bar to the plaintiff's 
success. Article 141 applies to the ordinary simple case 
of a reversioner, where the validity of the adoption is not 
the substantial point in dispute, or where the plaintiff can 
succeed without impugning the validity of the plaintiff's 
adoption.'' 

Exactly the same question arises where the suit is by 
one claiming as adopted son. Art. 119 fixes a limit of six 
years to a suit " to obtain a declaration that an adoption is 
valid." The period beginning to run from the time ** when 
the rights of the adopted son as such are interfered with." 
There the Courts of Bombay and Madras hold that where 
the plaintiff has no title on which he can recover posses- 
sion except by establishing his adoption Art. 119 applies, 
even though he sues in form for recovery of land, and not 
for a declaration that his adoption was valid (n). The 
Courts of Allahabad and Calcutta hold that Art. 119 has 
no application to a possessory suit, even though it involves 
and requires a decision as to the validity of an adoption (o). 
It is curious that a question on which authority in India 
is so evenly balanced has never been referred to the Court 
of Final Appeal. 

It may be necessary to remark, that neither the law creates right 
of Estoppel nor the Statute of Limitations can make a ?**' ■***^- 
person an adopted son if he is not one. They can secure I 
him in the possession of certain rights, which would be his 1 1 

(l) 21 Bom., 169. 

fm) 24 Bom., 260, p. 266; foUd. Bamchandra v. Narayan, 27 Bom., 614. 

(n) Oangahai ▼. Tarahai^ 26 Bom., 720; Ratnamasari v. Akilandammal^ 
26 Mad., iSl, dM$. Bhashyam Iyengar, J. 

(o) Lali V. Murledhar, 24 All., 195; Ohandania v. Ralig Bam, 26 All., 40; 
Jagannath Proiod r. Banjit Singh, 26 Cal., 864. 



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214 



LAW OP ADOPTION. 



[chap. V, 



Betnlto of ftdop< 
tion. 



Lineal saooes- 
aion. 



if he were adopted, by shutting the "mouths of particular 
people, if they propose to deny his adoption ; or, by stop- 
ping short any suit which might be brought to eject him 
from his position as adopted. But if it becomes necessary 
for the person who alleges himself to have been adopted, 
to prefer a suit to enforce rights of which he is not in 
possession, he would be compelled strictly to prove the 
validity of his adoption, as against all persons but the 
special individuals who were precluded from disputing it- 

§ 164. Sixth. — The Kesult of Adoption may be 
stated generally to be, that it transfers the adopted son 
out of his natural family into the adopting family, so far 
as regards all rights of inheritance, and the duties and 
obligations connected therewith. But it does not oblite- 
rate the tie of blood, or the disabilities arising from it. 
Therefore, an adopted son is just as much incapacitated 
from marrying in his natural family as if he had never 
left it. Nor can he himself adopt a person out of his 
natural family, whom he could not have adopted if he 
had remained in it (§ 172). 

Questions of inheritance arise, first : where there is 
only an adopted son ; secondly, where there is also legiti- 
mate issue of the adoptive father. Under the first head, 
succession is either to the paternal line, lineally or 
collaterally, or to the maternal line. 

§ 165. Where there is only an adopted son, properly 
constituted, he is beyond all doubt entitled to inherit to 
his adoptive father, and to the father and grandfather 
and other more distant lineal ancestors of such adoptive 
father, just as if he was his natural-born son (p). But 
there has been considerable discussion as to whether he 



(p) Dattaka Mimamsa, vi., § 8, 8 ; Dattaka Chandrika, v., §26, iii., $ 20; Gour- 
hullub V. Jaggenoih, F. MacN., 159 ; Mokundo v. Bykunt, 6 Cal., 289. Sir F. 
MacNaghteu waa of opinion that an adopted son in Bengal was even in a better 
position than a nataral-bom son, as having an indefeaFible right to his father** 
estate, which a natnral-bom son would not have F. MacN., 157, 228. This 
opinion was rejected by the Privy Council in the Pittapur Case, 26 I. A., 83 : 
S. C, 22 Mad., 888. 



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PARAS. 164 & 166.] RESULTS OP ADOPTION. 2116 

was entitled to inherit to collaterals. A reference to the Co iktow J mm- 
table of sonship (g) will show that eight of the fourteen 
authorities referred to place the adopted son beyond the 
sixth in number. Now, all of these say that the first six 
sons inherit to the father, and *to collaterals ; the last six 
only to the father. From this it is argued by those who 
rely on the eight, that he only succeeds lineally ; by those 
who rely on the remaining six, that he inherits collate- 
rally also. The real fact, of course, is that the two sets 
of authorities represent different historical periods of the 
law of adoption ; the former relating to a period when the 
adopted son had not obtained the full rights which he 
was recognized as possessing at a later period. The 
Dattaka Chandrika as usual tries to make all the passages 
harmonise by saying : " In the same manner the doctrine 
of one holy saint that the son given is an heir to kins- 
men — ^and that of another that he is not such heir — are 
to be reconciled by referring to the distinction of his 
being endowed with good qualities or otherwise," and 
concludes the controversy by saying that wherever a 
legitimate son would succeed to the estate of a brother 
or other kinsmen, the adopted son will succeed in the 
absence of such legitimate son (r). The Mitakshar a 
follows Manu , who placest he adopted among the fi rst 
cla8S_of son^, and^ of cbursermakes h im a generaLau^ 
not merely a special hei r, while it explains away the 
conflicting texts as being founded on the difference of 
good and bad qualities (s). The Da ya Bhag a. on the 
other hand, follows Devala, who has been supposed to 
make the adopted son only heir to his fathe r, and not to 
collaterals (t). But it seems that is a misapprehension. 
Devala no doubt enumerates the different sons so as to 
bring in the adopted son as ninth. But then he goes on, 
" These twelve sons have been propounded for the pur- 
pose of offspring, being sons begotten by a man himself, 



iq) Ante $ 68. (r) Dattaka Chandrika, v., § 22—24. 

(•) Mitakshara, i., 11, § 80—34. {t) Daya Bhaga, x., § 7, 8. 



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2X6 LAW OF ADOPTION. [CHAP. V, 

or procreated by another man, or received for adoption, 
or voluntarily given. Among these the first six are 
heirs of kinsmen, and the other six inherit only from 
the father." Now, if the words ** the first six " refer, not 
to the original enumeration, but to the new arrangement 
by classes, the adopted son comes within the first six (m). 
Jagannatha, after appearing to rest the claim of an 
adopted son to collateral succession upon endowment with 
transcendent good qualities, finally states the present 
practice to be **fora son given in adoption, who performs 
the acts prescribed to his class, to take the inheritance of 
his paternal uncles and the rest" (v). This is also the 
opinion of Sir F. MacNaghten, of Mr. W. MacNaghten, 
of Sir Thomas Strange, and of Mr. Sutherland (w). The 
right has also been affirmed by express decision. In two 
cases, the right of an adopted son to succeed to another 
adopted son was declared (x). In other cases, the adopted 
son was held entitled to share an estate of his adoptive 
father's brother (y). In a later case, the adoptive son 
was held entitled to share in the property of one who was 
first cousin to his grandfather by adoption. And he takes 
exactly the same share as a legitimate son, when he is 
sharing with all other heirs than the legitimate son of his 
adoptive father (z). And so do his descendants, whether 
male or female (a). In the latest case upon the point, 
the right of an adopted son was maintained to succ eed jo 
all his adoptive father's sapindas, wheth e r the latt ei- j^ere 

(«) See D. Bh., x., 7, note, per curiam ; Puddo Knmaree v. Juggut Kishore. 
6 Cal., 630. 

(») 3 Dig., 270, 272 ; F. MacN., 162. 

{w) F. MacN., 128, 182; 1 W. MacN., 78;2 W. MacN., 187; IStra. H. L.,97 ; 
2 Stra. H. L., 116 ; Suth. Syn., 668, 677. 

{x) Shamchunder v. Narayni, IS. D., 209 (279) ; affirmed 8 Kn.. 65. (So 
much of this decision has allowed a second adoption to take place daring the life 
of the first adopted son must be taken as bad. But a note states that it was 
considered as settling the right of an adopted son to inherit from the collaterals 
Of his adoptive father.) Gourhurree v. Mt. Butna»uree, 6 S. D., 208 (260) ; Joy 
Chundro v. Bhyruh Chundro, S. D. of 1849, 461 ; see also the Judgment of 
Hobhouaoj J., in the Full Bench case of Guru Gobind v. Anand Lai, 6 B. L. R., 
16; S. C, 13 Suth. (F. B.), 49. 

(y) Lokenath v. Sha/masoonduree, S. D. of 1866, 1868 ; KUhenath v. Hur- 
reegobind, S. D. of 1869, 18 ; Ooorooperahad v. Rasbehary, S D. of 1860, i., 411. 

(a) Taramohun v. Kripa Moyee, 9 Suth., 423. 

(a) S. D. of 1858, 1863 ; of 1869, 18. 



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PARA. 166.] SUCCESSION EX PARTE MATERNA. 217 

related to the f ormer_Jhrgugh males only or throug h 
f amale s (6). 

§ 166. Another question as to which there was, till ^^^^^^^ 
lately, a singular conflict of opinion, is as to the right of 
an adopted son to succeed to the family of his adoptive 
father's wife, or wives. Prima facie one would imagine 
that he must necessarily do so. The theory of adoption 
is that it makes the son adopted to all intents and 
pm-poses the son of his father, as completely as if he had 
begotten him in lawful wedlock. The authors of the Natire writers. 
Dattaka Chandrika and Dattaka Mimamsa seem to lay 
the point down with the most perfect clearness. The 
former states that ** where there may be a diversity of 
mothers, the sires of the natural mothers are first desig- 
nated by a son, who is son to two fathers, at the funeral 
repast in honour of the maternal grandsires ; subsequently 
the sires of her who is the adoptive mother. But the 
absolutely adopted son presents oblations to the father 
and to the other ancestors of his adoptive mother only ; 
for he is capable of performing the funeral rites of that 
mother only " (c). And the latter says : *' The forefathers 
of the adoptive mother only are also the maternal grand- 
sires of sons given and the rest ; for the rule regarding the 
paternal is equally applicable to the maternal grandsires of 
adopted sons (d) ; and in an earlier chapter (I, § 22) 
Nanda Pandita says • ** In consequence of the superiority 
of the husband, by his mere act of adoption, the filiation 
of the adopted, as son of the wife, is complete in the same 
manner as l\er property in any other thing accepted by 
her husband. " So Mr. Sutherland states as the effect of 
these passages that — ** He likewise represents the real 
legitimate son in relationship to his adoptive mother, 
whose ancestors are his maternal grandsires '* (e). To the 
same effect is a futwah recorded by Mr. MacNaghten, 

(6) Puddo Kumaree v Juggut KUhore, 5 Cal., 616, affd. sub nomdne Pudma 
Coamariv. Court of Wards, in Privy Council, 8 I. A., 229; S. C, 8 Cal., 302. 

(c) Dattaka Chandrika, iii., § 16, 17. 

(d) Dattoka Mimamsa, vi., $ 50-52. («) Suth. Syn., 668. 



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318 LAW OP ADOPTION. [cHAP. V, 

where the adopted son of a sister was held to be an heir 
to that sister's brother, that is to say, he inherited to 
his adoptive mother's family (/). On the other hand, 
Mr. W. MacNaghten himself decides against the right of 
an adopted son to succeed to property, which the wife of 
Decisions. the adopting father had received from her relations. For 

this he refers to a case in Bengal, where he says the point 
was determined (g). This, however, was a mistake, as 
has been repeatedly pointed out. There was no decision 
of the Sudder Court such as Mr. MacNaghten supposed, 
but there was an unnecessary opinion of the pundits, 
which itself rested only upon an irrelevant text of the 
Daya Bhaga. Upon this supposed decision, however, two 
express rulings, negativing the right of the adopted son 
to succeed to property ex parte matenid^ were subse- 
quently given in Bengal and in Madras {h). Yet, in 
direct conflict with the only principle which could have 
justified such a decision, it was settled that the next-of- 
kin of an adoptive mother would be the heirs of her 
adopted son (i) and that an adopted son would succeed 
to the stridhanum of his adoptive mother (A:). Finally it 
was decided by the Allahabad High Cou rt that an adopte d 
son had all the rights of a natural-born s on in the 
maternal line as well as in the paternal line, a nd would 
therefore succeed to property which his adoptive mother 
had inherited from her father (I). This decision was 
followed by the High Court of Bengal in a case where the 
plaintiff claimed property which had devolved upon the 
son of A, by virtue of his adoption by the daughter of A. 
In their judgment the former Bengal decision and that 
which followed it in Madr as were formally over-ruled, 
and the general principle laid down by the Allahabad 
High Court was approved and adopted to the fullest 

(/) 2 W. MacN., 8b. 

(.<7) 1 W. MacN., 78, citing Ounga Mya v. Kishen Kishnre, 3 S D., 128 (170). 

(h) Marun Moer v. Bejoy, Suth. Sp. No. 1*21 ; Chinna HamakrUtiia v 
Minachi, 7 Mad. H. C, 246. 

(t) Gunga Pertad v. Brojesaaree, S. D. of 1859, 1091. 

{k) Teen Gotvrie v. Dinonath^ 3 Sutli., 49 and so laid down bv the pandits in 
Bombay, W. & B., 513. {I) Sham Kuar v. Gaya, 1 All., 256. 



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PARA. 167.] ADOPTED AND APTBR-BORN SONS. 21ft 

extent. This ruling was supported on appeal by the 
Judicial Committee, and has finally settled a controversy 
which had lasted for upwards of eighty years (m). In 
conformity with it, the adopted son of a daughter has 
been held to share equally with the natural -born son of 
another daughter the inheritance left by his maternal 
grandfather (n). 

§ 167. Another question, which has only lately received Sacoession 
a final decision, is that of the rights inter se of the wives ^^*t^to 
or widows of a person to whom an adoption has been *^<>p*^ ^"- 
made to succeed to the property of the adopted son. This 
question cannot be settled by any analogy drawn from the 
text of Manu. *' If among all the wives of the same 
husband, one bring forth a male child, Manu has declared 
them all, by means of that son, to be mothers of male 
issue '* (o). There is a natural and insuperable distinction, 
which no fiction can destroy, between an actual mother 
and a stepmoth er, and accordingly the former inherits to 
her son where the other does not (p). Where, howeve r, 
the adoption is made by the husband himsel f, and nothin g 
is ^ dong^ to give one wife pre-emin ence over the oth ers, 
there seems to beno ground of distinction between them . 
The ceremonial of adoption utterly ignores the wife, who 
need not be present and to whom no part is assigned if 
she is present (g). She becomes the mother of the adopted 
son by the mere fact of his adoption (r). Neither the 
Dattaka Chandrika nor the Dattaka Mimamsa allude to 
the questions that may arise from a plurality of wives. 
Jagannatha recognises the difficulty, but does not settle 
it (s). Where the succession is to an impartible property, 
the senior widow would of course take just as she would if 
the succession were to her husband (t) ; but where the 
property was partible the rights of all would primn fade be 

(w) JJma Bunker V. Kali Komul, 6 Cal., 256; afd. 10 I. A., 138; S. C, 
10 Oal., 232. 
(«) Su/rjokant Nundi v. Mohesh Chvnder, 9 Cal., 70. 

(o) ix., 183. (p) Post § 566. {q) Baudh., vii., 6. 

(r) D. M , I, 22. (8) 3 Dig., 253. 

(0 Annapumai Naehiar v. Forbes, 26 I. A., 246; S. C, 28 Mad., 1. 



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220 LAW OF ADOPTION. [CHAP. V, 

I equal. This was the view taken by Mr. W.MacNagh ten («), 
though his opinion to the full extent to which it was 
pushed, has lately been over-ruled by the Privy Council. 
It is supported by the opinion of the pundit in a Bengal 
case, where he says that, even in the case of an adoption 
by one of several widows, the child becomes the child 
of all three (v). There is, however, a very obviou s 
distinction jn a case where the adoption is made^ ot 
b y the husband, hut by his widow , 'acting under his 
authority, express or implied. In such a case, though 
she only represents her husband, the act is her own. 
She cannot be compelled to perform it ; and when 
performing it she takes his place in the ceremonial, and 
is the person who actually receives the child. Accord- 
ingly the pundit, in the case last quoted, said that, if the 
adopted boy died, the widow adopting him will be called 
the mother, and the others the stepmother s {w). The 
principle was followed in another case to the extent of 
holding that where one of several widows made an adop- 
tion not only would she alone inherit to her adopted son, 
but on her death the estate would pass, not to the other 
widow, but to the collateral next in the order of suc- 
cession {x). A less obvious distinction is the case of a 
husband who, while himself making the adoption, pro- 
fesses to make it in conjunction with one of several wives 
specially selected to assume the part of the mother. In 
such a case, where the wife so selected was the second 
wife of the adopter, and the adoptive mother died before 
the adopted son, it was held that on his death the eldest 
widow was not his heir as mother, being only a step- 
mother, and that the succession went to a nephew of 
the husband {y). This decision was followed by the 
Judicial Committee on an appeal from Madras. There the 



(u) ]^W. MaoN., Preliminftry Remarkn, x. 



(v) Degambery v. Taramonyy F. MacN., Appx., xi. 

{w) lb. tt6., Sup. F. MacN., J71 ; W. & B., 1181. 

(x) 1 W. MacN., II, 62. 

(y) Kaahiahuree Debia v. Oreeth Chunder, W. R., Jan.— July, 1864, 71. 



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PARA. 167a.] adopted and after-born sons. 221 

property was impartible. The husband had made an 
adoption in conjunction with his second wife, the first 
wife having ceased to live with him. After his death the 
adopted son succeeded, and on his death the succession to 
him was disputed by the widows, one claiming as senior 
widow, the other as adoptive mother. The Madras Court 
decided in favour of the latter," and this decision was 
affirmed by the Privy Council (z). They said : ** it seems 
not to be doubted that a man may authorise a single one 
of several wives to adopt after his death, or that she 
would on adoption stand in the place of this natural 
mother. If he can do that, it would be very capricious to 
deny him the power of selecting a single wife to join with 
him in his lifetime in adopting a boy with the same effect 
on her relations with that boy. It is true that some rules 
of Hindu Law, resting perhaps on religious tenets 
or ancient customs, appear to be quite arbitrary ; but 
when this Board is asked to affirm a rule of that nature 
they require some cogent authority for it. It certainly is 
a reasonable law that the head of a family should be able 
to take action likely to prevent disputes between his 
widows relative to adoption and the consequences of it. 
To unite one's wife with himself in adopting is one way ; 
and it is satisfactory to find that besides the one direct 
judicial decision there is so much reason and opinion in 
its favour, and so little against it." 

§ 167A. The question of succession as between a dwya- Snooeseion 
mushyayana and his natural mother seems to have ^ZaSnSi 
arisen for the first time in the year 1904. Eaghunandan y^}[^^^^' 
had been adopted in that form by a special agreement 
between the natural and adopting fathers, who were 
distant relations, that he should remain the sons of both. 
He succeeded to the estate of the adopter, and subse- 
quently died leaving only a widow, on whose death the 
succession was claimed by his natural mother, and by the 

(*) Annapumai Nachiar v. Forbes, 18 Mad., 277, affd. 26 I. A., 246; S. C, 
28 Mad., 1. 



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^22 



LAW OP ADOPTION. 



[chap. V, 



After-born 
legitimate Bon. 



Share of 
adopted son. 



grandnephew of the adoptive father. It was admitted 
that but for the special form of adoption the male claimant 
would succeed. It was held by the Allahabad High Court 
that by virtue of the special agreement the relationship 
of the natural mother was unaffected by the adoption, and 
therefore her right of succession (a). If she had died 
leaving property it follows that Raghunandan might have 
been her heir. If the adoptive mother had survived him 
apparently both mothers would have been co-heiresses. 

§ 168. Cases where a legitimate and an adopted son 
exist together can only occur lawfully, where a legitimate 
son has been born after an adoption. The adoption of a 
son by one who had male issue would be absolutely 
invalid (§ 108), and the son so adopted would be entitled 
to no share whatever. It may be suggested, on the 
authority of a text ascribed to Manu, that he would be 
entitled to have his marriage ceremony performed, which 

1 suppose includes maintenance also. But the text, if in 
force at all at present, seems to me to relate rather to 
informal than to wholly invalid adoptions, which would 
create no change of status (6). Where, however, a legiti- 
mate son is born after an adoption, which was valid when 
it took place, the latter is entitled to share along with the 
legitimate son, taking a portion which is sometimes spoken 
of as being one-fourth, and sometimes as being one- 
third of that of the after-born son (c). Dr. Wilson says 
that the variance is only apparent, and that all the texts 
mean the same thing, vijs,y that the property should be 
divided into four shares, of which the adopted son gets 
one. That is to say, he gets one-fourth of the whole, or 
one-third of the portion of the natural-born son (d). 
Whatever may have been the original meaning of the 
texts, a difference of usage seems to have sprung up, 

(a) BehaH Lai v. Shib Lot, 26 All., 472. 

lb) Dattaka Mimamsa, vi., § 1, 2; Dattaka Chandrika, vi., § 8. 
(c) Dattaka Mimamsa, x., $ 1 ; Dattaka Chandrika, v., § 16, 17 ; MiUkshnra, i., 
11, $24, 25; Daya Bhaga, x., §9; 3 Dig., 154, 179.290; V. May., iv., 6, §25; 

2 W. MocN., 184. 

{d) Wilson's Works, v., 62. 



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PARA. 168.] ADOPTED AND AFTER-BORN SONS. 223 

according to which the adopted son takes one-tjiird of the 
whole in Bengal, and one-fourth of the whole in other 
Provinces which follow Benares law (e). The Madras MadrM. 
High Court, however, have decided on the authority of the 
Sarasvati-Vilasa, that the fourth which he is to take is not 
a fourth of the whole, but a fourth of the share taken by 
the legitimate son. Consequently, the estate would be 
divided into five shares, of which he would take one, and I 
the legitimate son the remainder. A similar construction ' 
has been put upon the texts in Bombay (/). Nanda Bombay. 
Pandita suggests a further explanation, that he is to take a 
quarter share ; i.e., a fourth of what he would have taken 
as a legitimate son ; that is to say, a fourth of one-half, or 
one-eighth (g). Where there are several after-born sons, 
of course the shares will vary according to the principle 
adopted. Supposing there were two legitimate sons, then, 
upon the principle laid down by Mr. MacNaghten, the 
estate would be divided into seven shares in Benares, and 
into five shares in Bengal. According to the Sarasvati- 
Vilasa it would be divided into nine shares, the adopted 
son taking one share in each case. According to Nanda 
Pandita he would take one-twelfth (A). Among various 
castes in Western India the rights of the adopted son 
vary from one-half, one-third, and one-fourth to next 
to nothing, the adoptive father being at liberty, on the 
birth of a legitimate son, to give him a present and turn 
him adrift (i). 

According to a text of Vriddha Gautama, a n adopted Sudraa. 
and an after-born son share equal ly. This text is said, in 
the Dattaka Chandrika, to apply only to Sudras, and in 
the Dattaka Mimamsa it is explained away altogether, as 
referring to an after-born son destitute of good qualities. 

{e) D. K. S., vii., §23; 1 W. MacN., 70; 2 W. MacNTiM; F. MacN\, 137; 
Taramohun v. Kripa Moyee^ 9 Suth., 423; 1 Stra. H. L., 99, and so amongst 
the Jaius; Bukhal v. Chunilal, 16 Born^ 847. 

(/) Ayyavu v. NUadatchi, 1 Mad H. C, 45; W. & B., 373; Giriapa t. 
Ningapuj 17 Bom., 100. 

(a) Dattaka Mimamsa, v., § 40; Suth. Syn., 678. 

(h) P. MacN., 161 ; I MacN., 70; Jolly, Lect. 182. 

(t) Steele, 47, 186. 



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224 LAW OP ADOPTION. [cHAP. V^ 

The High Court of Madras, following Mr. W. MacNaghten 
and Sir Thomas Strange, say it is in force among all 
Sudras in Southern India, and M. Gibelin says it is the 
rule among all classes in Pondicherry. It is the rule still in 
Northern Ceylon. Baboo Samachm*n says that in Bengal 
this rule only applies to the lower class of SudraB (k). 
The above rules all apply to partible prope rty. It is 
stated by the Madras High Court that " the succession to 
impartible property devolves on tlf^e after-born son in 
preference to the adopted son, the reason being that the 
adopted son is a substitute for the aurasa son, and that> 
when the latter comes into existence, he excludes the 
substitute" (I). 
Bights of adopt- § 169. A curious question as to which there has been a 
tioTwUhTOiia- decision in Calcutta (m), is, whether the inferiority of 
an adopted son for purposes of inheritance is limited to 
the case of the subsequent birth of natural sons to the 
adopting father, or whether it applies also for the benefit 
of the brothers of such adopting father and their issue. 
In the particular case the pedigree was as follows : — 



tenJfl. 



BCD 
I ' I Adopts 

^ - - . — ^ 4 deft. Sadhu Churn. 

1 deft. 2 deft. 3 deft. plaintiff. 

The family was governed by Mitakshara law. " The 
plaintifif sued for a partition after the deaths of A, B, 
C, and D. In the Original and Appellate Courts the only 
points taken were to establish that he was not entitled to 
any share. The defendants being defeated in this conten- 
tion urged on appeal to the High Court that his share 
would not be one-third but one-sixth. The High Court 



(k) Dattftka Mimamsa. v., § 43; Dattaka Chandrilca. v., § 82; 1 Stra H. L., 
99; 1 W. MacN., 70, n.; 1 Gib., 82; Thesawaleme, ii., § 2; V. Darp., 979; Baja 
V. Suhha,raya^ 7 Mad., 253. A son-in-law aftiliated in the Illntom form, which 
is in use in some of the Telugu-speaking districts of Madras takes an equal 
share with a natural-born son. Hanumantammn v. Rami Reddi, 4 Mad., 272. 

{I) Ramaaami Eamaya v. Sundaralingatami, 17 Mad., p. 435. 

(m) Baghubanand Doss v. Sadhu Churn^ 4 Cal., 426. 



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PARA. 169.] ADOPTED AND APTBR-BORN SONS. 236 

affirmed this view, relying upon the DattakaChandrika, V., 
24 & 25. Markby, J., pointed out that Mr. Sutherland's 
translation of s. 24 omitted some lines, and that the two 
sections really ran as follows : — ** 24. * Therefore by the 
same relationship of brother and so forth, in virtue of 
which the real legitimate son would succeed to the estate 
of a brother or other kinsman, the adopted son of the 
same description obtains his due share. And in the event 
of the ancestor having other sons^ a grandson by adoption 
whose father is dead obtains the share of an adopted son* 
Where such son may not exist, the adopted son takes the 
whole estate even.' The words in italics are omitted 
by Mr. Sutherland. 

" There is no dispute between the parties to this 
appeal that this emendation of Mr. Sutherland's trans- 
lation ought to be made. 

" Paragraph 25 is as follows : — ' Since it is a restrictive 
rule that a grandson succeeds to the appropriate share of 
his own father, the son given, where his adopter is the real 
legitimate son of the paternal grandfather, is entitled to 
an equal share even with a paternal uncle, who is also such 
description of son : therefore a grandson who is an adopted 
son may (in all cases) inherit an equal share even with an 
uncle. This must not be alleged (as a general rule). For' 
there would be this discrepancy where the father of the 
grandson were an adopted son, he would receive a fourth 
share ; but the grandson, if he were such son (of him) 
would receive an equal share (with an uncle in the 
heritage of the grandfather) and accordingly, whatever 
share may be established by law for a father of the same 
description as himself, to such appropriate share of his 
father does the individual in question {viz,, the adopted 
son of one adopted) succeed. Thus, what had been 
advanced only is correct. The same rule is to be applied 
by inference to the great-grandson also. ' The words, viz.^ 
' the adopted son of one adopted ' do not occur in the 
original. But even if we strike out these words, and take 
15 



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^Sfii: LAW OP ADOPTION. [cHAP. V, 

the two paragraphs according to their more correct version, 
they clearly enunciate that, upon partition, an adopted 
son and the adopted son of a natural son stand exactly in 
the same position, and that each takes only the share 
proper for an adopted son, — i.e., half of the share which 
he would have taken had he been a natural son." 

The learned Judge then proceeded to deal with the 
objection, that under Mitakshara law the plaintiff's 
adoptive father D acquired by birth a vested interest in 
one-third of the estate, and that the whole of this interest 
descended to the plaintiff by right of representation. This 
he answered by pointing out (p. 430), that under Mitak- 
shara law no definite share vested in any member of the 
family so long as it remained joint, and that the share of 
each must be determined by the state of the family, and 
the position of each individual member at the time of 
partition. If then the sole adopted son of a natural-born 
, son was only entitled to half the share that a natural-born 
son of the same father would have been entitled to, it 
made no difference that his father, if he had sought for a 
partition earlier, would have obtained twice that share, and 
that the whole share so obtained would have descended 
to him. It came back cbgain to the same question, what 
were his own personal rights at the time of partition . 
0m6 disooMed. § 170. The text of Vasishtha upon which all the authori- 
ties rely is as follows (XV., 9) : '* when a son has been 
adopted, if a legitimate son be afterwards born, the given 
son shares a fourth part. " To which the author of the 
Dattaka Mimamsa adds (X., 1) : '' on the default of him he 
is entitled to the whole. " That is to say, to the whole 
of the property of his adoptive parent. This is quite 
intelligible. An adopted son is a substitute for a natural 
son, and cannot come legally into existence if there is a 
natural son. But a man may adopt under the belief that 
he will never have a natural son, and find himself mis- 
taken. Then justice is done by giving a larger share to 
the natural son, and a smaller to the son who would 



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PARA. 170.] ADOPTION AND AFTER-BORN SONS. 227 

never have been adopted, if it could have been foreseen 
how matters would really have turned out. But is there 
anything in the wording or principle of the rule to suggest 
that a person who has become by adoption the sole son of 
his adopter shall have his rights in the family diminished, 
because other legitimate sons have been born, not to his 
adopter but to the brothers of that adopter ? It is admitted 
that no authority can be found for such a position in the 
text of Vasishtha itself, or in any commentary except 
that of the Dattaka Chandrika as cited. But the latter 
seems to me to bear a very different interpretation. The 
clauses 24 and 25 relate to the general rights of all adopted 
sons, not to the special position of an adopted son where 
there are after-born legitimate sons of his adoptive parent. 
The author is commenting not only on the text of 
Vasishtha, but on texts of Manu and others, some of 
which lay down that an adopted son only inherits to 
lineals, others that he inherits to lineals and collaterals 
also. He reconciles these by the usual formula that a 
son with good qualities is meant in the latter case (§ 168). 
It seems to me that § 24 merely states the general 
principle that, however distant from the common ancestor, 
an adopted son has the lull rights of an adopted son as 
such ; not merely of an adopted son who is driven to 
share with legitimate sons. The commencement of § 25 
lays down explicitly that the adopted son of one natural 
son inherits equally with the natural-born brother of such 
son. Then the author meets the question whether every 
grandson by adoption would inherit in the same manner. 
To this he answers, not necessarily. If an adopted son 
himself adopted, then his son could take no more than 
himself ; i.e., if there were legitimate sons along with 
the first adopted son he himself would only take one- 
fourth, and therefore his son by adoption could take no 
more. Or as the Smriti Chandrika expresses it " the 
individual in question (an assumed grandson by adoption) 
will only take whatever share may be established for a 
father of the same description as himself " (a son by 



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228 



LAW OP ADOPTION. 



[chap. V, 



Sorvivonhip. 



Removal from 
natural family. 



adoption) . What share that is would depend upon whether 
legitimate sons were afterwards born to the first adopting 
father or common ancestor. If there were he would only 
take one-fourth, and his son, whether natural or adopted, 
could take no more. 

§ 171. When the legitimate and adopted son survive 
the father, and then the legitimate son dies without issue, 
it has been held in Madras that the adopted son takes the 
whole property by survivorship (n). Of course, it would 
be different in Bengal, if the legitimate son left a widow, 
daughter, etc. 

§ 172. By adoption the boy is completely removed from 
his natural family as regards all civil rights or obligations. 
He ceases to perform funeral ceremonies for those of his 
family for whom he would otherwise have offered oblations, 
and he loses all rights of inheritance as completely as 
if he had never been bom (o). And, conversely, his 
natural lamily cannot inherit from him (p), nor is he liable 
for their debts (5). Of course, however, if the adopter was 
already a relation of the adoptee, the latter by adoption 
would simply alter his degree of relationship, and, as the 
son of his adopting father, would become the relative of 
his natural parents, and in this way mutual rights of 
inheritance might still exist. The rule is merely that he 
loses the rights which he possessed, qtid natural son. And 
the tie of blood, with its attendant disabilities, is never ex- 
tinguished. Therefore, he cannot after adoption marry 

(n) 1 Mad. H. C, 49, note. 

(o) Manu, ix., 142; Dattaka Mimamsa, vi., § 6—8; Dattaka Chandrika, ii.. 
§ 18— aO; Mitakahara,!., J), § 82; V. May., ir., 6, § 21 ; seecotUray 1 Gib., 95, aa 
to Pondi cherry. In parts of the Punjab the rights of the adopted son in his 
natural family take effect if his natural father dies without leaving legitimate 
sons. Punjab Customary Law, III, 88. A son-in-law, affiliated by the Custom 
of lUatom which prevails among some classes of Sudras in Madras, does not 
lose bis rights in his natural family. Balarami v. Pera, 6 Mad., 367 ; 
Hanumantamma v. Rami Eeddi^ 4 Mad., 272. An adoption made under the 
very lax customs of the sect of Gyawals in Gya does not deprive the person 
adopted of his rights in his natural family. Luchmun Lai v. Kanhva Lai. 7A 
I. A.,61;8. C.,22Cal.,609. ' 

{p) 1 W. MacN., 69; Strinivasa v. Kuppanayyangar, 1 Mad. H. C, 180: 
Mutkayyav.Minak8hi,25U8A.,S9i, i^tr ^ . v , ou, 

iq) Pranvullubh v. DeocrUtin^ Bom. Sel. Bep., 4 ; KaBheepernliad v. Buft«ee- 
dhur, 4 N.-W. P. (S. D.), 348. 



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PARAS. 171 — 173.] SON OP TWO PATHBRS. 229 

any one whom he could not have married before adop- 
tion (r). Nor can he adopt out of his own natural family 
a person whom, by reason of relationship, he could not 
have adopted had he remained in it (s). He is equally 
incompetent to marry within his adoptive family within 
the forbidden d^rees (t), 

§ 173. An exception to the rule that adoption severs a SlTfiktiiSli.*' 
son from his natural family exists in the case of what is 
called a dtoyaimishyayana , or son of two fathers. This term 
has a two-fold acceptation. Or iginal ly it appears to have 
been applied to a son who was begotten by one man upon 
the wife of anoth er, but for and o n beh alf o f that other . 
He was held to be entitled to inherit in both families, and 
was bound to perform the funeral oblations of both his 
actual and his fictitious fathers (u). This is the meaning 
in which the term is used in the Mitakshara, but sons of 
this class are now obsole te (v). A nother meanin g is that 
of a son who has been adopted with an exj)re 8S_o r implie d 
un derstanding that he is to be the son of both fathers . 
This agam seems to take place under different circum- 
stances. One is what is called the Anitya, or temporary 
adoption, where the boy is taken from a different gotra^ 
after the tonsure has been performed in his natural family. 
He performs the ceremonies of both fathers, and inherits 
in both families, but his son returns to his original 
gotra («?). This form of adoption seems now to be ob- 
solete. At all events I know of no decided case affirming 
its existence. Anoth er case is that of an adoption bvoi^e 
brother of the son of another brother . He is already for 
certain purpose considered to be the son of his uncle. 
When he is the only son, the law appears to reconcile the 

(r) DatUk* MimAmsa, ri., $ 10; Dattaka Chandrika, iv., § 8; V. May., iv., 
«.5 80. 

(«) Moottia MoodeUy ▼. Uppon, Mad. Deo. of 1858, p. 117. 

it) Dattaka Mimamita, vi.. ^ 26, 88. 

In) Bandhayaoa, ii., 3* § 12; Narada, 18, ^ 28; Dattaka Chandrika, ii., § 85. 

\v\ Mitakshara. i., 10; 2 Stra. H. L., 82, 118. 

(it) 2 Stra. H. L., 120: 1 W. MacN., 71 ; see fntwah of Pandits in 8hvm$here 
T. DUraj, 2 S. D.. 169 (216); Dattaka Mimamsa, vi., $ 41—48; Dattaka 
Chandrika, ii., S 87 ; Behari Lai v. Shib Lai, 26 All., 472. 



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230 



LAW OF ADOPTION. 



[chap. V, 



After-born son. 



conflicting principles that a man should not give away his 
only son , and that a brother's son should be adopted, by 
allowing the adoption, but requiring the boy so ad opted 
to perform the ceremonies of both fathers , and admitting 
him to inherit to both in the absence of legitimate issue. 
It is stated by Mr. Strange in his Manual that the 
dwyamushyayana in this sense also is obsolete. And so 
it was laid down in one Madras case. But the weight of 
authority in opposition to that statement seems to be 
overwhelming (ic). Among the Nambudri Brahmans of the 
West Coast (§ 44) the dwyamicshyayana form prevails 
generally without any special circumstances, as the 
ordinary incident of an adoption (y). 

§ 174. Where a legitimate son is born to the natural 
father of a dwyamicshyayana, subsequently to the adoption, 
the latter takes half the share of the former ; if, however, 
the legitimate son is born to the adopting father, the 
adopted son takes half the share which is prescribed by 

I law for an adopted son, exclusively related to his adoptive 
father, where legitimate issue may be subsequently bom to 
that person (z), that is half of one-fourth or one-third, 
according to the doctrines of different schools (§ 168). 
The Mayukha, however, seems only to allow him to 
inherit in the adoptive family, if there are legitimate sons 
subsequently born in both, and then gives him the share 
usual in such a case where the adoption has been in the 
ordinary form, that is, one-fourth or one-third (a). It lays 
down no rule for the case of legitimate sons arising in one 
family only. 



(x) Strfl. Man., § 90; Mad. Dec. of 1869, p. 81 ; Dattaka Chandrika, v., § 88; 
V. May., iv., 6, § 22, 25 ; Dattaka Mimamsa, vi., § 34—86, 47, 48; W. B., 89S, 
aud Bee authorities cited ante § 145. Mr. V. N. Mandlik nays that, whatever 
the theory may be, such adoptions are in practice obsolete, p. 506. In the 
N.-W. Provinces, adoptions of this character are said to be very common, Jolly, 
Lect. 166. The proposition stated in the text was adopted by the Bombay 
Court in a recent case between Lingayets. Chinapa v. Baaangavdat 21 Bom., 
105 ; following the opinions of Judges of the same Court in a former case in the 
same Sect. Baaava ▼. Lingangauday 19 Bom., pp. 454, 466. 

iy) 11 Mad., 167, 178. («) Dattaka Chandrika, v., % 88, 84. 

(a) V. May., iv., 5, S 26. 



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PARAS. 174 — 176.] SON OP TWO PATHERS. 'jjgjl 

§ 175. It is probable that the rule which deprived an origin of nUe. 
adopted son of the right to inherit in his natural family 
originate37 not from alay^^tion^f a change of paternity, 
but simply from an equitable idea , that one who had been 
sent to seek his fortunes m another family, and whose 
services were lost to the family in which he was born, 
ought not to inherit in both. This is the view taken of 
the matter in the Punjab, where it is said that if the 
natural father dies without heirs, the village custom would 
be in favour of the child's double succession (6). In 
Pondicherry, a boy, notwithstanding adoption, preserves 
his rights of inheritance in his natural family, if he has 
not found a sufl&cient fortune in his acquired family, and 
in all cases if his natural father and brothers have died 
without issue. This doctrine, however, is based not upon 
any special usage, but upon the view which the French 
jurists have taken of the Hindu texts (c). The Thesa- 
waleme merely states that " an adopted child, being thus 
brought up and instituted as an heir, loses all claim to 
the inheritance of his own parents, as he is no longer 
considered to belong to that family, so that he may not 
inherit from them." It is not stated whether his right 
would revive if there were no heirs in his natural family. 
But he only forfeits rights to the extent to which he 
acquires others ; therefore, if his adoption is only by the 
husband, he continues to inherit to his natural mother ; 
if it is only by the wife, he continues to inherit to his 
natural father (d). 

§ 176. A question of very great importance, which Effect of mi in. 
seems plain enough in theory, but which appears to be ^*^** adoption, 
still unsettled, is as to the effect of an in yalid^adoption. 
Primd facie one would imagine that it would confer no 
rights in the adoptive family, and take away no rights in 
the natural family. The claim to enforce rights in the 

(6) Punjab Oust., 81 ; Puniab Customary Law, III, 83. 

(c) 1 Gib., 95, citing Dattaka Mimamsa, i., § 81, 82 ; vi., § 9 ; Mitakshara, i., 
10, § I, note, $ 82, note 



Thesawaleme, ii., § 2. 



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S)89 LAW OP ADOPTION. [cHAP. V, 

former family, or to resist them in the latter, must depend 
upon a change of status, and if the adoption, upon which 
such change depended, were invalid, it would seem as if 
no change could have taken place. But there certainly is 
much authority the other way. I have already (§ 138) 
jQoticed the texts which award maintenance to a son 
adopted out of an inferior class, and suggested that they 
are merely a survival from a time when such adoptions 
were in fact valid, though less efficacious than others {e). 
A text is also ascribed to Manu which lays down that 
** He who adopts a son without observing the rules 
ordained, should make him a participator of the rites of 
marriage, not a sharer of wealth." This text seems to be 
interpreted as applying to a person who makes an adoption 
MMbM. without observing the proper forms (/). Sir Thomas 

Strange cites these texts, as establishing that a person 
may be adopted under circumstances which will deprive 
him of his rights in one family, without entitling him to 
more than maintenance in the other. But he questions 
the proposition in a note, and refers to Mr. Sutherland as 
being of opinion that if the adoption were void the natural 
rights would remain {g). In one old case the pundits of 
.the Sudder Court of Madras laid it down that an adoption 
of a married man over thirty years of age, and with 
three children, was invalid, but that he was entitled to 
maintenance in the family of his adopting father. The 
proposition was cited before the High Court, and approved 
of. The approval, however, was extra-judicial, as the 
High Court considered that they were bound by former 
decrees to treat the adoption as valid, and actually awarded 
the plaintiff his full rights as adopted son (A). In a later 
case, where a boy had been adopted by a widow without 
any authority, it was held that the adoption was wholly 
invalid, and gave the boy no right to maintenance. The 

( e ) See per cur. Bawani v. Ambnbay^ 1 Mad. H. C, 367. 

(/) Daltaka Mimamsa, v., § 45; Dattaka Chandrika. ii., § 17 ; vi., § 3. 



ig) I Stra. H. L 

Ih) Ayyavu v. NUadatchi, 1 Mad. H. C, 45. 



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PARA. 177.] EFFECT OF INVALID ADOPTION. 233 

Court said : '' in reason and good sense it would hardly 
seem a matter of doubt that where no valid adoption, in 
other words, no adoption, has taken place, no claim of 
right in respect of the legal relationship of adoption can 
properly be enforced at law.*' The Court also expressed ^ 
their opinion that the natural rights of the plaintiff 
remained quite unaffected (i). 

§ 177. In Bengal the case has twice arisen incidentally, Bengal, 
though in neither instance in such a manner as to require 
a decision. In the first case, which was before the 
Supreme Court, Colvile, C. J., said : ** It has been said on 
one side and denied on the other (neither side producing 
either evidence or authority in support of their contention) 
that a DaUaka, or son given, would forfeit the right to 
inherit to his natural father, even though he might not, 
for want of sufficient power, have been duly adopted into 
the other family. This proposition seems to be contrary 
to reason, but for all that may be very good Hindu law. 
But from the enquiries we have made, we believe the true 
state of the law on the subject to be this. There may 
undoubtedly be cases in which a person, whose adoption 
proves invalid, may have forfeited his right to be regarded 
as a member of his natural family. In such a case some 
of the old texts speak of him as a slave, entitled only to 
maintenance in the family into which he was imperfectly 
adopted. But one very learned person has assured me Depends on per- 
that the impossibility of returning to his natural family oeremonies. 
depends not on the mere gift or even acceptance of a son, 
but on the degree in which the ceremonies of adoption 
have been performed ; and that there is a difference in this 
respect between Brahmans and Sudras : a Brahman being ' 
unable to return to his natural family if he has received ^ 
the Brahmanical thread in the other family ; the Sudra, if 
not validly adopted, being able to return to his natural ; 
family at any time before his marriage in the other family. 

(i) Bawani v. Ambabay, I Mad. H. C, 368. Approved by Weatropp, C. J 
Lakthma^a ▼. Bamava, 12 Bom. H. C, p. 397. 



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1234 • I'-A.w OP ADOPTION. [chap. v> 

Even if it be granted that a person, merely because he is 
a Dattaka, or son given, apart from the performance of 
any further ceremony, becomes incapable of returning to 
his natural family, that rule would not govern the case of 
an adoption that was invalid because the widow had not 
power to adopt. For to constitute a Dattaka, there must 
be both gift and acceptance. A widow cannot accept a 
son for her husband unless she is duly empowered to do 
so, and, therefore, her want of authority, if it invalidates 
the adoption, also invalidates the gift " (A;). 
Rule saggeeted. § 1^8. In the above passage, the words " ceremonies 
after adoption ** ought apparently to be substituted for the 
words " ceremonies of adoption." The principle of the 
rule suggested seems to be that a man cannot take his 
place in his natural family unless the essential ceremonies 
have been performed in it, and that if performed in a 
wrong family, they cannot be performed over again in the 
right one. But that where no such ceremonies have 
followed upon the adoption, he can return, if there has 
not been a valid giving and receiving. Where there has 
been a valid giving and receiving, then, apparently, he 
could not return, even though, in consequence of some 
other defect, the adoption may have been so far invalid, 
as not to invest the person taken with the full privileges 
of an adopted son. 

§ 179. In the other Bengal case, the Court refused to 
enforce specific performance of a contract to give a boy in 
adoption in consideration of an annuity. They said that 
this would be a Kritaka adoption which is now invalid, 
therefore that the contract, ** if it were capable of being 
carried out, and were recognized by the Court, would 
involve an injury to the person and property of the 
adopted son, inasmuch as if it could be proved that the 
boy was purchased and not given, it is very probable that 
the adoption would be set aside ; and if such adoption 

(A) Sreemutty Bajcoomaree ▼. Nobocoomar, 1 Boul., 137 ; 8. C, Seveat., 64, 
uote. 



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PARAS. 178 — 180.] EFFECT OP INVALID ADOPTION. 236 

were set aside, he would not only lose his status in the 
family of his adopting father, but also lose his right of 
inheritance to his natural parents " (I), In this case there 
would have been a complete giving and acceptance. But 
if the mode of doing so had ceased to be lawful, it is 
difficult to see how there could be a valid giving and 
acceptance, any more than if the son had been a self- 
given or a castaway. It may be suggested whether the 
whole theory of imperfect adoption is not a relic of the 
times when some sorts of adoption were falling into dis- 
favour, though still practised and permitted. The view 
taken by the Madras High Court that an adoption must 
either be effectual for all purposes, or a nullity, has the 
merit of being practical and intelligible, while doing 
substantial justice to all parties. 

§ 180. The validity of an adoption often becomes validity of gift 
material as determining the validity of a gift or of a who^a^tion 
bequest. Suppose a gift made to a person who is believed " invaUd. 
to be an adopted son, but whose adoption turns out to be 
invalid ; is the gift to fail or to stand good ? The answer 
to this question does not depend upon any special doctrine 
of Hindu law, but upon general principles applicable to 
all similar cases. Where a gift is bestowed upon a person 
who is described as possessing a particular character or 
relationship, the gift may be to him absolutely as an 
individual, the addition of his supposed character or rela- 
tionship being simply a matter of description. In this 
case, if the identification is complete, the gift prevails, 
though the description is incorrect. For instance, a 
bequest to Charles Millar Standen and Caroline Elizabeth 
Standen, legitimate son and daughter of Charles Standen. 
It appeared that they were really illegitimate, but their 
claim was supported (m). So where a will was to this 
effect, " I declare that I give my property to Koibullo 
whom I have adopted. My wives shall perform the cere- 

{l) Eikan KUhcr v. HarU Chandra, 13 B. L. R., Appx, 42 ; S. C.,21 Suth., 881. 
(m) Standen ▼. Standen^ 2 Vea. Jan., 589. 



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286 LAW OP ADOPTION. [CHAP. V, 

monies according to the Shastras and bring him up.'* 
Then followed a clause showing that no other adoption 
was to be made till after his death. It was held in the 
Privy Council that even if the widows never performed 
the contemplated ceremonies, or performed them ineffect- 
ually, the bequest was valid (?i). The two following cases 
went on the same principle : a testator recited that he 
had loved and supported A. C. and had intended to give 
him a large share of his property ; and that he had 
subsequently adopted him. He then proceeded to devise 
substantially the whole of his property to him by name. 
The adoption was found to be invalid, but the bequest 
was held good (o). In the Pittapur Case, the Bajah, after 
many years of childlessness, adopted the plaintiff. He 
subsequently quarrelled with him, and some years later it 
was announced that one of his wives had given birth. The 
Bajah then made a series of wills in which, after stating 
that by Hindu law the property should go to the aurasa 
son, he proceeded to devise the whole of his property 
to his aurasa son, naming him, subject to legacies and to 
maintenance for the adopted son. After the Rajah's death 
the plaintiff sued to set aside the will as invalid on various 
grounds, and to recover the property, alleging that the 
son was suppositious. The Original Court decreed in his 
favour on all grounds. The case was argued in the High 
Court on the will only, on the assumption that the son was 
not the Kajah's. It was admitted that the Bajah must 
have known that this was so, and that for the purpose of 
argument it must be taken that the contrary assertions 
in the will were fraudulent. The High Court, finding that 
the will was in law valid, held that the boy took as 
persona designata, and this decision was confirmed by the 
Privy Council (p). So a foster child, that is, one who 
has been taken into the family of another, nurtured, 

^(n) Nidhoomoni Dehya v. Saroda Perahad, 3 1. A., 253; 8. C, 26 Suth., 91. 

(o) Bvretwar ▼. Arda Chunder, 19 I. A., 101 ; S. C, 19 Cal., 462. 

iv) Venkata Surya Mahipati v. The Court of Wardt, 20 Mad.. 167; affd.., 
26 I. A.. 83 ; S. C. 22 Mad., 883 ; ace. Suhbarayer v. Subbammal, 27 1. A., 162 ; 
S. C, 24 Mad., 214. 



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PABA. 181.] IN DEVESTING ESTATE. 287 

educated, married and put forward in life as his son, but 
without the performance of an actual adoption, does not 
obtain any rights of inheritance thereby {q). But a gift 
made to such a person by his foster-father, if in other 
respects valid, will not be made void, merely because he 
was under the mistaken belief that the foster-son would 
be able to perform his funeral obsequies (r). 

§ 181. Again a gift may be made to a person who is Gift to a rap- 
supposed to possess some special relationship, in such a J^^h. **°* 
manner that the existence of the relationship is a condition 
precedent to the coming into operation of the gift, or is an 
essential limitation as determining the person who is to 
henefit by it. Here if the relationship does not exist the 
gift cannot take effect. A Hindu made an adoption under 
circumstances which were held not to justify him in 
making any adoption. At the same time he executed in 
favour of the boy so adopted an angikar-patra, which^ 
after reciting the adoption, provided as follows : " I 
authorize you by this angikar-patra to offer oblations of 
water and pinda to me and my ancestors after my death, 
by virtue of your being my adopted son. Moreover you 
shall become the proprietor of all the movable and immov- 
able properties which I own and which I may leave 
behind. *' The Judicial Committee hejd that the gift failed 
with the adoption, as it was evidently the intention of the 
donor to give his property to the boy as his adopted son, 
capable of inheriting by the adoption (s). A testator by 
his will made the following provisions : " I have two wives 
living. Each of the two Eanees will adopt one son. The 
two adopted sons of both wives shall remain the shebaits 
of the whole of the property dedicated to Annapurnah, 
the Kuranee. " The Ranees adopted simultaneously as 

(q) 2 8tr«. H. L., Ill, 118; Steele, 184; Bkimana v. Tayappa, Mad. Dec. of 
1861 ; 134 Sorg H. L., 142; Co. Con., 369. 

(r) Abhachari v. Ranuichendrayija^ 1 Mad. H. C, 398. 

(«) Famndra Deb v. Bajeawar Doss, 12 1. A., 72 ; S. C, 11 Cal., 463 ; Doorga 
Sundari v. Surendra Keanav, 12 Cal., 666 ; Karaandas v. LadkavahUy 12 Bom., 
185 ; SJiamavahoov. Ihparkadas, ib. 202; Patel Vandravan JekUan v. Manilal, 
15 Bom., p. 578 ; Abba v. Kuppammalj 16 Mod., 355. 



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2S8 



LAW OF ADOPTION. [cHAP. V, 

directed. The Judicial Committee, affirming on this point 
the decision of the High Court, held that the adopted 
sons could not take under the will either as adopted, 
or as shebaits ; the adoptions were bad. " There is no gift 
to the adopted sons except in their character as shebaits ; 
and it would require very strong and clear expressions to 
show that a Hindu contemplated introducing as shebaits 
of his family Thakoor, two persons unknown to himself, 
and strangers to his family. There is not a trace in this 
will to show any such intention, or to show that the 
testator doubted the legality of his scheme, or thought of 
any adoption but a legal one (t). In a later case the 
testator had named his nephew Earamsi as a boy whom 
he had wished to adopt, and whom he authorized his 
widow to adopt. He then proceeded to bequeath the 
residue of his property to this boy as his inheritance, and 
to appoint him his heir. The widow never did adopt him 
and her subsequent death made his adoption impossible. 
The High Court of Bombay held that he could not take 
except as adopted son, and this decision was supported, 
though with considerable hesitation, by the Privy Council. 
The argument to which they yielded was " that the testator 
assumed as a basis of his dispositions that there would be 
an adoption, and that the alternative did not occur to him. 
Thus, it is urged, with the failure of adoption the whole 
structure of the will fails ; and there ensues an mtestacy, 
not as desired or contemplated by the testator, but because 
he took for granted the existence of a condition which has 
not come to pass '* (u). So where a testator left an 
annuity to his wife, " So long as she shall continue my 
widow and unmarried. '* After the date of the will, and 
before his death she obtained a divorce ab initio on the 
ground of nullity of marriage. It was held that she could 
not take the annuity, as it was only capable of being held 
by a person who occupied the position of widow of the 

(0 Surendra Keshav v. Doorganindari Daaaee, 19 I. A., 106; 8. C, 19 
Col., 618. 
(u) Karamsi Madhowjee y. Kar$onda9, 20 Bom., 718 ; affd.fOQ Bom. (P. C), 371. 



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PARAS. 182 & 183.] IN DEVESTING ESTATE. 239 

testator (t?). In all such cases, if the right of the donee | 
depends on his possessing a particular character, and the | 
existence or non-existence of such character depends upon 
a particular fact, the onus of proving that fact lies upon 
the party who will fail if it is not made out (w). 

§ 182. An intermediate state of things is where the ^^^J^^^ei 
supposed character of the donee is the motive, but not *>»' »«* <^o, 

" "^ , ..... essence of the 

necessarily the only motive, for the disposition inhisfavour. gift. ^ 
If a man makes a gift to one whom he erroneously sup- ""^ 
poses to be his son or his wife, he does so, partly because 
it is his duty to provide for such near relations, partly ' 
because feelings of affection have arisen in reference to 
them. Here the gift will be valid though the relationship 
never existed ; & fortiori if the relationship had existed at 
the time the gift was made, though it had ceased before 
the gift came into effect (x). Where, however, " a legacy 
is given to a person under a particular character which he 
has falsely assumed, and which alone can be assumed to 
be the motive for the bounty, the law will not permit him 
to avail himself of it, and therefore he cannot demand 
the legacy." Hence a bequest to a person who had 
fraudulently induced the testator to contract a bigamous 
marriage with him or her, the testator being ignorant of 
the facts, is invalid (y). 

§ 183. The case of an adoption made by a widow to her Adoption by 

widow I 

husband, after her husband's death, raises special consider- 
ations, owing to the double fact that the person adopted 
has in general a better title than the person in possession, 
while, on the other hand, the title of the person so in 
possession has been a perfectly valid title up to the date 
of adoption. Questions of this sort arise in two ways : 
First, with regard to title to an estate ; secondly, with 

(p) In re Boddinfff^n, 22 Ch. D., 597. afd.. 25 Ch. D., 685. 

(w) Banqo Btdaji v. M*tdiepva, 28 Bom.. 296: Sham Chand Pal v. Protab 
Chundfrr, 24 I. A., 186; S. C. 25 Cal., 78: \ni\. Evidence Act, ss. 101—104. 

(«) R« Boddingtnn ub. «np. Bullnors v. Wyrtter, 22 Ch. D.» 619; Wilkinson 
V Jowfhin. 2 Eq.. 819. See, however, re MorrisMon. 40 Ch. D., 80. 

(v) Per Lord Cottenham. 6 Myl. <fe Cr., 150, following Kennel v. Abbott ^ 
4 Vcs., 802 ; Wilkinson v. Jovghin^ nb. sup. 



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240 



LAW OP ADOPTION. 



[chap. V, 



act optional. 



iiB effect. 



Deyests estate 
of widow ; 



I regard to the validity of acts done between the date of the 
husband's death and the date of adoption. 

§ 184. It has already been pointed out (z) that a widow 
with authority to adopt cannot be compelled to act upon 
it unless she likes. Consequently, the vesting of the 
inheritance cannot be suspended until she exercises her 
right. Immediately upon her husband's death it passes to 
the next heir, whether that heir be herself or some other 
person, and that heir takes with as full rights as if no 
such power to adopt existed, subject only to the possibility 
of his estate being devested by the exercise of that power. 
But as soon as the power is exercised, the adopted son 
stands exactly in the same position as if he had been born 
to his adoptive father, and his title relates back to the 
death of his father to this extent, that he will devest the 
estate of any person in possession of the property of that 
father to whom he would have had a preferable title, if he 
had been in existence at his adoptive father's death (a). 
One of the most common cases is an adoption by a widow, 
who is herself heir to her husband. The result of such 
an adoption is that her limited estate as widow at once 
ceases. The adopted son at once becomes full heir to the 
property ; the widow's rights are reduced to a claim for 
m aintena nce ; and if, as would generally happen, the 
adopted son is a minor, she will continue to hold as his 
guardian in trust for him (6). Where there are several 
widows, holding jointly, one who has authority from her 
husband to adopt would, of course, by exercising it 
devest both her own estate and that of her co- widows, 
and no co- widow can, by refusing her consent, prevent the 
adoption, or destroy its effect upon her estate (c). And 

(z) Ante § 119. 

(a) BaJbu Anoji v. Batnoji^ 21 Bom., 819. 

\h) DhurmDaaPandtyv. Mt. Shama Soondri, 8 M. I. A., 229; 8. C.,6 3uth. 
(P. C)f 48. Of course, the adopted son does not take any of fche property which 
is held by the widow as her Stridhana., W. A B., 1174. The Court, in awnrd- 
ing the property to the adopted son, will take all necessary steps for determining 
and securing the maintenance of the widow. Vrandivandaa v. Yatnunabai, 12 
Bom. H. C, 229 ; Jamnabai v. Bychand. 12 Bom., 226. 

{c) Mondakini Dasi v. Adinatk, 18 Cal., 69. 



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PARAS. 184 & 185.] IN DBVBSTING ESTATE, 2il 

in the Mahratta country, where no authority is required, 
it is held that the elder widow may of her own accord 
adopt, and thereby destroy the estate of the younger 
widow, without obtaining her consent. The Court said : 
** It would seem to be unjust to allow the elder widow to 
defeat the interest of the younger by an adoption against 
her wish. But, on the other hand, if the adoption is 
regarded as the performance of a religious duty and a 
meritorious act, to which the assent of the husband is to 
be implied wherever he has not forbidden it, it would 
seem that the younger widow is bound to give her consent, 
being entitled to a due provision for her maintenance, and 
if she refuses, the elder widow may adopt without it " (d). 
It was not decided, but it seems to be an inference from 
the language of the Court, that they did not think the 
junior widow would have had the same right. Of course, 
an adoption would d fortiori devest all estates which 
follow that of the widow, such as the right of a daughter 
or a daughter*s son (e). 

§ 185. An adoption will equally devest the estate of one or of mfenor 
who takes before the widow, provided he would take afterl -^^ 
the son. For instance, where, in the Madras Presidency,! 
an undivided brother succeeded to an impartible Zemin-' 
dary in Berhampore, on the decease of his brother, the 
last holder, it was held that his estate was devested by an 
adoption made by the widow of the latter after his death, 
and under his authority (/^. And so it would be, in Estateofpw- 
regard to partible property, held by two brothers the d^l^^a^"**** 
whole of which on the death of one brother, vests b}'^ 

{d) Bakhmabai ▼. Badkabaij 5 Bom. H. C. (A. C. J.), 181, 192. Per curiam, 
18 Cal. , p. 74. See post 5 1S9. 

(e) Bamkishsn v. Mt. SH Mutee, 3 S. D , 367 (489). 

(/) Baghunadha v. Brozo KUhoro, 3 I. A., 154 ; S. C, 1 Mad., 69 ; 8. C, 26 
SaUi., 291. The facts of this case seem to have been misunderstood by the High 
Court of Bengal, in Kally Prosonno v. Oocool Chunder,po8t ^ 191, where they 
say (2 Cal , 909), **The property in dih^pate in that case was riot a joint family 
property, and the surviving members of the joint family unjnetly took possession 
of it, by exclndin^ the widow of the owner, who was entitled by the .Mitakshura 
law to fiQCOsed to it." The property was joint, thoagh impartible, and it was 
admitted that, as the brothers were undivided, the widow had no right to 
anything beyond maintenance. Nayammani v. Deva Baja, 3 Mysore, 174. 

16 



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242^ LAW OP ADOPTION. [cHAP. V, 

survivorship in the other. An adoption made to the de- 
ceased brother by a duly authorised widow puts an end to 
the survivorship, just as a posthumous birth would do (g). 
On the other hand, if the estate has once vested in a 
person who would have had a preferable title to that of a 
natural-born son, an adoption will not defeat his title or 
that of his successor, whether male or female, unless the 
successor be herself the widow who makes the adoption. 
Both branches of this rule are illustrated by decisions 
of the Privy Council. In the first case, Gour Kishore, a 
OhundrmbnUee's Zemindar in Bengal, died leaving a widow Chundra- 
buUee and a son Bhowanee. Previous to his death he 
executed a document whereby he directed his wife to 
adopt a son in the event of failure of her own issue. 
Bhowanee succeeded to the Zemindary, married, came to 
full age and died, leaving no issue, but a widow Bhoobun 
Moyee. Chundrabullee then adopted Ram Kishore under 
her authority. He sued the widow of Bhowanee for the 
estate. It will be remembered that, under the law of 
Bengal, a widow is the heir of her husband, dying without 
issue, even though he has an undivided brother. The 
Judicial Committee held that the plaintiff's suit must be 
dismissed, since his adoption gave him no title that was 
valid against Bhowanee's widow. They said : ** In this 
case Bhowanee Kishore had lived to an age which enabled 
him to perform, and it is to be presumed that he had per- 
formed, all the religious services which a son could perform 
• ' for a father. He had succeeded to the ancestral property 

as heir : he had full power of disposition over it ; he might 
have alienated it : he might have adopted a son to succeed 
to it if he had no male issue of his body. He could have 
defeated every intention which his father entertained 
with respect to the property. On the death of Bhowanee 
Kishore, his wife succeeded as heir to him, and would 
have equally succeeded in that character in exclusion of 
his brothers, if he had had any. She took a vested estate, 

^g) S'treudra Nandan v. Sailaja, 18 Cal., 366 ; Vithoba v. Bapu, 15 Bom., 110. 



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PARA. 185.] IN DEVESTING ESTATE. 24S 

as his widow, in the whole of his property. It will be 
singular if a brother of Bhowanee Eishore, made such by 
adoption, could take from his widow the whole of his 
property when a natural-born brother could have taken 
no part. If Bam Eishore is to take any of the ancestral 
property, he must take all he takes by substitution for the 
natural-born son, and not jointly with him. Whether 
under his testamentary power of disposition Gour Kishore 
could have restricted the interest of Bhowanee in his 
estate to a life interest, or could have limited it over (if 
his son left no issue male, or such issue male failed) to 
an adopted son of his own, it is not necessary to consider ; 
it is sufficient to say that he has neither done, nor attempt- 
ed to do, this. The question is, whether, the estate of 
his son being unlimited, and that son having married and 
left a widow, his heir, and that heir having acquired a 
vested estate in her husband's property as widow, a new 
heir can be substituted by adoption, who is to defeat that 
estate, and take as an adopted son what a legitimate son 
of Grour Kishore would not have taken. This seems 
contrary to all reason, and to all the principles of Hindu 
law, as far as we can collect them. It must be recollected 
that the adopted son, as such, takes by inheritance and 
not by devise. Now the rule of Hindu law is, that in the i 
case of inheritance, the person to succeed must be the | 
heir of the last full owner. In this case Bhowanee I 
Kishore was the last full owner, and his wife succeeds, as 
his heir, to % widow's estate. On her death the person to 
succeed will again be the heir at the death of Bhowanee 
Kishore. If Bhowanee Kishore had died unmarried, his [Jniess heiress is 
mother Chundrabullee would have been his heir, and the ^*>P*^'^i^o''- 
question of adoption would have stood on quite different 
grounds. By exercising the power of adoption, she 
would have devested no estate but her own, and this 
would have brought the case within the ordinary rule ; 
but no case has been produced, no decision has been cited 
from the text books, and no principle has been stated, to 
show that by the mere gift of a power of adoption to a 



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^44 LAW OF ADOPTION. [CHAP. V, 

widow, the estate of the heir of a deceased son, vested in 
possession, can be defeated or devested *' (A). 

§ 186. The case suggested by their Lordships at the 
close of the above quotation, was the case which actually 
came before them for decision in 1876. There, a Zemin- 
eimtiiroMe. dar in Guntur in the Madras Presidency died, leaving a 
widow, an infant son, and daughters. The son was placed 
in possession, but died a minor, and unmarried. His 
mother was then placed in possession, and adopted a son, 
without any authority from her deceased husband, but 
with the consent of all the husband's sapindas. This was 
before the decision in the Ramnaad case (§ 121), and the 
Government refused to recognize the adoption, and the 
adopted son was never put in possession. On the death 
of the mother, the Collector placed the daughters in poss- 
ession, apparently treating the heirship as one which 
had still to be traced to their father, the last full-aged 
Zemindar. The Madras High Court treated the adoption 
as invalid, on grounds which have been already discussed. 
On appeal, the Privy Council maintained the adoption, 
and right of the adopted son to take as heir. They held 
that in the Madras Presidency the consent of the sapindas 
was as efficacious for the purpose of enabling a widow to 
adopt in lieu of a son who had died without issue, as it 
admittedly was where there never had been issue at all. 
As to the effect of the adoption they proceeded to say : 
" If, then, there had been a written authority to the 
widow to adopt, the fact of the descent being cast would 
have made no difference, unless the case fell within the 
authority of that of ChundrabuUee, reported in 10 Moore, 
in which it was decided, that the son having died leaving 
a widow in whom the inheritance had vested, the mother 
could not defeat the estate which had so become vested 
by making an adoption, though in pursuance of a written 
authority from her husband. That authority does not 

(h) Bhoobun Moyee v. Bam Kiahore, JO M. I. A., 279, 810; S. C, 8 SaUi. 
P. C), 16. 



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PARAS. 186 — 188.] IN DBVBSTING ESTATE. 24S 

govern the present case, in which the adoption is made 
in derogation of the adoptive mother's estate ; and indeed 
expressly recognizes the distinction '' (i). 

§ 187. It will be observed that, in both of the Madras Principle of 

&DAVA C^^A^M 

cases in which the' right of the adopted son was affirmed 
by the Privy Council, the property had descended lineally 
from the person to whom the adoption was made. In the 
Berhampore case (§ 185), the last male holder was the 
person to whom the adoption was made. In the Guntur Cases in which 
case (S 186), there had been an intermediate descent to his be^d^veSbld.*^* 
own son, and on his death without issue the Zemindary 
had reverted to the person making the adoption, who was 
at once his mother and his father's widow. Two different 
cases, however, have arisen : First, where the property 
has descended to A, the son of B, to whom the adoption 
is made, as in the Guntur case, but has passed at his death 
to a person different from the widow who makes the adop- 
tion ; secondly, where the property has descended from A, 
and the adoption has been made to B, a collateral relation 
of A. Let it be assumed that the adopted son of B 
would in each case have been the heir to A, if he had been 
adopted previously to the death of A. The question arises, 
whether, if he is adopted subsequently to the death, he 
will devest the estate of the person who has taken as heir 
of A. It has been held that he will not. 

§ 188. The first point was decided in a Madras case. MadrMdeoiBion. 
There N had died, leaving a widow, the first defendant, 
and a son, Sitappah, by another wife. Sitappah died un- 
married, and thereupon his step-mother, the first defend- 
ant, adopted Munisawmy, who was the son of one Bali. 
Bali sued as guardian of his son to establish the adoption. 
Its validity was conceded by the High Court. It seems 
to have been admitted in argument that the first defend- 
ant, as step-mother, was not the heir of Sitappah, and 
that Bali was his heir. Upon this the High Court held 

(f) FeUanki y. Venkata Rama, 4 I. A., 1; S. C, I Mad., 174; S. C, 26 
Suth., 21 ; Boieunt Money v. KUhen Soonder, 7 Suth., 392. 



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246 LAW OP ADOPTION. [CHAP. V, 

that the adoption conveyed no title to the property. 
They said : ** Even if it be considered that N's widovir 
possessed or acquired in 1870 (the date of Sitappah's 
death) power to adopt a son to her husband, it has to be 
determined whether, according to Hindu law, any adop- 
tion could then be lawfully made by her. The principle 
of the decision of the Privy Council in the case reported 
in 10 Moore's Indian Appeals, 279 {ante § 185), appears 
to us to govern this case, and show that it could not. 
Chinna Sitappah had inherited his father's property ; 
* He had full power of disposition over it ; he might 
have alienated it ; he might have adopted a son to suc- 
ceed to it, if he had no male issue of his body. He 
could have defeated every intention which his father enter- 
tained with respect to the property.' On the death of 
Chinna Sitappah, the next heir, it is here admitted, was 
Bali Reddy, who is the natural father of the minor plain- 
tiff, and who has also other sons. The inheritance having 
passed in 1870 to Bali Reddy still remains in him ; and 
we must hold, upon the authority cited, that the estate of 
the deceased son, thus vested in possession, cannot be 
defeated and devested " (k). Accordingly, where a father 
died leaving widows, and also the widow of a predeceased 
son, who made an adoption to her husband, the adoption 
was held bad, as the widow's power of adoption, for the 
purpose of representation, was gone as soon as the estate 
of the father became vested in his widows (I) . 
BomUy § 189. The second point arose both in Bombay and in 

Bengal. In the Bombay case the facts were as follows : — 

A 



Anandrain Sobharam 

a Sai'jabai, a Rakhmabai. 

I adopts 
Badridag. 

Anandram and Sobharam were undivided brothers, who 

(A) Anvamah v. Mahbu Bali Heddy, H Mad H. C, 06; followed, Dooho- 
moyeft v. Shama Chum, 12 Cal.,24H ; where the heir of the son was hia eraod- 
mother; Kcahar Bamkrishna v. Qovind Ganesh, 9 Bom., 94; Chandra, v. 
Oojrabai, 14 Bom., 463, where the son's estate vented in his widow. 

(l) Damidhar v. Chinto, 20 Bom., 260. 



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PARA. 189.] IK DEVESTING ESTATE. 247 

died leaving widows, but no male issue. Anandram died 
first, therefore his whole interest passed to Sobharam, 
and, on the death of the latter, the entire property vested 
in his widow Rakhmabai. After the death of Sobharam, 
Sarjabai, widow of Anandram, adopted a son. Thereupon 
a creditor raised the question, whether he took the estate 
of Sobharam. It was argued that the case in 10 M. I. A., 
279 {ante i 185) established that an adoption can never 
be held valid, which has the effect of devesting an estate 
once vested. Upon that, however, Melvill, J., remarked : 
'* In that case A claimed, by virtue of adoption, an estate 
which B had inherited from C. Even if A had been a 
natural-born son, B and not A would have been the heir 
of C ; and it was held that, under such circumstances, A 
could not defeat B's estate. There would seem to be no 
room for doubt on this point, and the decision in that case 
certainly does not support the argument (which is more- 
over at variance with the decision in Rakhmabai y. 
Radhabai) (m), that an adoption can in no case operate to 
defeat an interest once vested. " The same Judge, how- 
ever, expressed a strong opinion that the adoption would 
not be valid on the ground suggested by the Judicial 
Committee in the Ramnaad case (n). He summarised 
their views as follows : — ** In other words, when the estate 
is vested in the widow, she may adopt without the consent 
of reversioners, but when the estate is vested in persons 
other than the widow, and the immediate effect of an 
adoption would be to defeat the interest of those persons, Rapchand «. 
then justice requires that their consent should be obtained. 
This proposition seems very reasonable and just. *' He 
distinguished the case from that of Rakhmabai v. Radhabai 
by saying : ** The two widows being equally bound to take 
the measures necessary to secure their husbands* future 
beatitude, the younger widow, who by withholding her 
consent, ignores the religious obligation imposed upon her, 

(m) 6 Bom. H. C. (A. C. J.], 181, ante § 184. 

(j») Collector of Madura v. Moottoo Bamalinga, 12 M. I. A., 897 ; S. C, 1 
B. L. R (P. C), 1 ; S. C, 10 Suth. (P. C), 17, ante § 122. 



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SHt6 LAW OP ADOPTION. [CHAP. V, 

has no right to complain of injustice if the adoption be 
made by the elder without her consent. But it does not 
follow that the plea of injustice is to be equally disregarded 
where it is put forward by a person who is under no such 
religious obligation. In Kakhmabai v. Radhabai, it was 
certainly laid down in the broadest terms that, in the 
Mahratta country, a Hindu widow may, without the 
consent of her husband's kindred, adopt a son to him, 
if the act is done by her in the proper and bond fide 
performance of a religious duty, and neither capriciously, 
nor from a corrupt motive. But the Judges by whom 
that case was decided were not dealing with an adoption 
which would have had the effect of devesting an estate 
vested in a relative other than a widow, nor in any of 
the decided cases on which they relied was the validity 
of such an adoption in issue. It does not appear to 
me that the authorities quoted would be sufficient to 
support the validity of an adoption working such manifest 
injustice " (o). 
diffoTBlroni § 190. As a matter of fact, the Court found that Sob- 

haram's widow had given her consent to the adoption, 
which, on the ground which has been frequently taken by 
the Bombay High Court, would have rendered it valid (p). 
It will, of course, be observed that the Madras and the 
Bombay Courts went upon different grounds. The Madras 
Court considered that the question was decided by the 
authority of the Privy Council. But there was this diff- 
erence between the two cases that, in Chundralullee's 
case, the adopted son, if natural-born, would not have been 
heir to the property he claimed. In the Madras case 
he certainly would have been. This was pointed out by 
the Bombay High Court (q). Their judgment proceeded 
upon the ground that the adoption itself was invalid. No 

(o) Bupchand v. Bakhmabai, 8 Bom. U. C (A. C. J.), 114. This reitBoning 
was followed in the oaae of Bamji v. Ghainan, 6 Bom., 408 ; Dinker v. Oaneth^ 
ib., 505; Patel Vandravan JekUan v. Mantlal^ 15 Bom., 565. 

ip^ Post § 193. 

Iq) See also the remarks madp upon it by the Bengal High Court in iZam 
Soondur v. Surhanee Doaaeey 22 8uth., 121. 



Madras ruling. 



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PARAS. 190 & 191.] DEVESTING OP PREVIOUS ESTATE. 240 

objection of that sort could be taken in the Bengal case, 
and there the judgment went upon different grounds from 
those taken in either of the cases last cited. The facts of 
it were as follows : — 

§ 191. P and B, named in the annexed table, were Bengal deomoa. 
undivided brothers, who held their property in the quasi- 
severalty of the Bengal law. P, by his will, bequeathed 

A dies 1825. 



Pdies 1851 B dies 1845 

=»B D dies 1864, I 

I K dies 1855 

daughter = Bamasoondery 

dies childless after her who in 1876 adopts 

father and before her mother. Kally ProsONno, tfie plaintiff. 

his share to his widow B D for life, and after her to the 
sons of his daughter, if any, subject to trusts, legacies and 
annuities. The daughter died without issue during the 
widow's life, and at her death the widow made a will, 
bequeathing the property to the defendant, as executor, 
for religious purposes. K died in 18S'5, leaving to his 
widow authority to adopt. If she had exercised that 
authority prior to the death of B D, there can be no 
doubt that the son adopted to K would have been the 
heir of his grand-uncle P, and would have been entitled 
to set aside the will of B D, and to claim the property of 
P, so far as he had not disposed of it by his will. But 
the power was not exercised till 1876. When the suit 
was brought by the adopted son, the Court held that he 
could not succeed. At the death of B D, the whole 
property of P must have vested in some one who was 
then the heir of P ; or if there was no such heir in 
existence, it must have passed to Grovernment by escheat. 
The Court held, upon a review of all the cases, that there i 
was no authority for holding that an estate, which had i 
once vested in a person as heir of the last full owner, \ 
could be subsequently devested by the adoption of a person I 
who would have been a nearer heir, had his adoption taken 



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260 



LAW OF ADOPTION. 



BulM. 



[chap. V, 

place previously to the death. They considered that the 
inheritance could not remain in a sort of latent abeyance, 
subject to be changed from one heir to another, on the 
happening of an event which might never take place, or 
only at some indefinite future time (r). Some passages 
in the judgment are more broadly expressed than they 
would have been, if the Court had not misconceived the 
facts of the case in the Privy Council from Berhampore (5)- 
But the decision itself, coupled with the other cases cited, 
seems to lead to the following conclusions : Firsts where 
an adoption is made to the last male holder, the adopted 
son will devest the estate of any person, whose title would 
have been inferior to his, if he had been adopted prior to 
the death. Secondly, where the adoption is not made to 
the last male holder, but is made by the widow of any 
previous holder, it will, if in other respects valid, devest 
her estate. Thirdly, under no other circumstances wi ll 
an adoption made to one person devest the es t ate of an v 
one who has taken that estate as heir of a nother person . 
All these rules seem to be consistent with natural justice. 
In the first case, the object of an adoption is to supply an 
heir to the deceased. That heir, when created, properly 
takes precedence over any one who is a less remote heir. 
Further, the services which he renders to the deceased 
are fitly rewarded by the estate. In the second case, the 
widow who makes the adoption exercises a discretion 
which may be intended to produce a preferable heir to 
herself. Naturally she takes the consequences. But in 
the third case, there can be no reason why an adoption, 
which is intended to benefit A, should disturb the succes- 
sion to the estate of B, who receives no benefit from it, and 
who has not been consulted upon it, or been instrumental 
in bringing it about {t), 

(r) Kally Prosunuo v. Gocool Chunder, 2 Cal., 295, followed in a later cai>e 
when it was held that it made no difference that the delcy in adoption had 
arisen from the fraud of the person who took the estate in default of adoption. 
Nilcomul V. Jotendro, 7 Cal , 178. Affd. Bhuhaneawart v. Nilkomul, 12 I. A., 
187 ; S. C, 12 Cal., 18; Faizuddin v. Tincovm Saha, 22 Cal., 666 ; Anandibai 
V. Kashibai, 28 Bom., 461. (s) See ante § 186, note (/). 

{t) Approved and followed j?<rrr«nam, 18 Cal., 74, 398; 20 Bom., p. 267. In 



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PABA. 192.] DEVESTING OF PREVIOUS ESTATE. 261 

§ 192. The effect of assent by the parties interested, Effect of 
when given to an adoption which would have been invalid ^uStyto'^"** 
under the previous rules, has been much considered in "^^p****^- 
Bombay, though it does not appear to be finally settled. 
The simplest case is that of an adoption to an undivided 
coparcener. Such an adoption, when made by the man 
himself, prevents survivorship, and, when made after his 
death, destroys the result of the survivorship. Yet it is 
quite certain that, except under Mithila law, whatever 
adoption the man himself might have made, may be 
made by his widow duly authorised (ante § 185). In 
such a case, however, it is laid down in Bombay that the 
ordinary authority, which, in Western India, a widow 
possesses to adopt for the benefit of her husband, does not 
enable her to adopt so as to nullify the operation of 
survivorship in an undivided family. That authority, 
where its exercise would devest any estate but her own, 
must be supplemented by such an authority of her father- 
in-law, or the undivided sapindas of her husband as would^ 
in the Madras Presidency, suffice for a widow who had 
received no authority from her husband. This doctrine 
was not based on the idea that the consent of those who 
were prejudiced by an adoption was necessary to bar their 
interests. It was put upon the ground that the Maratha 
rule only applied to widows to whom the property had 
descended, and ought not to be extended. Where the 
Maratha rule did not apply, the only authority which 
could supply the want of one directly given by the hus- 
band was to be found in the decisions of the Judicial 
Committee in the Ramnaad and Berhampore cases (u). 

Chandra v. Gojarabaij 14 Bom., pp. 409, 470. Tcltniy, J., st'itetl the following 
mles which seem sobRtantially the same : — (J) that adoption by a widow under 
her husband's aathority ban the effect of devesting an estate vested in any mem- 
ber of the undivided family, of which the husband was himself a member ; but it 
does not devest the estate if one on whom the inheritance has devolved from a 
lineal heir of the husband ; (2) that the adoption, though authorised by the 
husband, cannot devest the estate which has already vested in a collateral rela- 
tion of the husband, in succession to some other person, who had himself become 
owner in the mesntime. 

(u) Ramti ▼• Okanian, 6 Bom., 498; Vithoba v. Bapu, 16 Bom., 110, p. 119; 
Amava v. Mahad Gauda^ 22 Bom., 416, p. 41S. 



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382 LAW OF ADOPTION. CHAP. V, 

Cafiesoi assent to § 193. On the other hand, there are cases where the 
is itself invaUd.. Courts have held that an adoption b}' a widow, which did 
not come within the Maratha rule, and which was not 
authorised by sapindas under the Madras decisions, might 
be rendered valid by the consent of the person whose estate 
would be devested by it. In Rupchand v. Rukhmabai (v) 
the Court, after laying down the law as to the incapacity 
of a widow to adopt so as to devest the estate of the 
widow of the last holder, proceeded to find " that the adop- 
tion had been made with the consent of Kukhmabai, and 
with the intention on her part that it should have its full 
legal eflfect. Having been made with such consent and 
intention, I am of opinion that the adoption is valid.** In 
a later case {w)y the facts were exactly the same as those 
in Annamah v. Mabbu Bali Reddy (x). Atmaram and 
Sakharam were divided brothers. Atmaram had a son, 
Govind, who died before his father, leaving a widow, 
Ganga Bai. On the death of Atmaram without widow or 
children, his estate passed to Sakharam, who subsequently 
gave his son in adoption to Ganga Bai, who adopted to her 
deceased husband, Govind. It was held that as Sakharam 
had consented to the adoption, his estate was devested. 
This was what had happened in the Madras case, where 
the consent of the father was held not to operate in 
favour of his son. It may be suggested that, as there 
was no undivided family, the consent of the divided 
coparcener was sufficiently within the ruling in the 
Ramnaad case and those which followed it in the Privy 
Council, This, however, does not appear to have been the 
ground on which the decision went, and was not alleged 
to be so in the next case which followed it (y). There, 
Bhimaji had a son who predeceased him, leaving a widow, 
Sarasvati. He died leaving a widow, Umava, and Saras- 
vatij his daughter-in-law. The estate, of course, descended 

( v) 8 Bom. H. C. (A. C. J.), IH, 122, ante § 189. 

{w) Bapu Anaji v. Batnoji, 21 Bora., 319. 

( x) 8 Mad. H. C, 108, ante ^ 188. 

(y) Payappa v. Appanna, 23 Bom., 327, p. 329. 



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PARAS. 193 & 194.] DEVESTING OF PREVIOUS ESTATE. 36ft 

to Dmava, and, on her death, would have passed to the 
distant kindred, if any, of Bhimaji. Sarasvati adopted 
with the consent of Umava. It was held that the adop- 
tion was valid. Here, it is plain that, on the principles 
previously laid down in Bombay, Sarasvati had no 
authority under Maratha law to adopt, and Umava had no 
power to supply her own authority. Ranade, J., stated 
the general rule to be that " it is only the widow of the 
last full owner who has the right to take a son in adoption 
to such owner, and that a person in whom the estate does 
not vest cannot make a valid adoption so as to devest (with- 
out their consent) third parties in whom the estate has 
vested of their proprietary rights.'' To this rule he said 
there were four exceptions : First, the power of the elder of 
several co- widows who had succeeded to their husband, to 
adopt to him without the consent of the others. Second, 
the power of a widow to adopt to her husband, though she 
has not succeeded to him immediately, but as heir of his 
unmarried son. Third, that, when the adoption takes 
place with the full assent of the party in whom the estate 
has vested by inheritance, the adoption is validated by 
such assent. The Fourth exception is clearly allied to 
the one discussed above, and is based on the principle of 
ratification by conduct or acquiescence. In a previous 
case where it was found that no consent had been given, 
the same Judge assumed that, if given, it would have 
made such an adoption valid (z). 

§ 194. There are, however, cases where this position ConiUotinf 
was doubted. In one case (a) Dharnidhar left three *^*"*" 
widows and a daughter-in-law, Venubai, the widow of a 
predeceased son, Chintaman. The estate ultimately vested 
in the surviving widow, Luxumibai. In 1871, while she 
was in possession, Venubai adopted the plaintiff to her 
own husband. In 1874 Chinto obtained possession of the 
estate by decree against Luxumibai. Then the plaintiff 

(«) Gapal T. Vishnu, 28 Bom., 260. 

(a) Dhamddhar v. Chinto; 20 Bom., 260, p. 268. See, ioc, Krithniiruv t. 
Shanherrav, 17 Bom., 164; Bamkrishna t. Shamrao, 26 Bom., 626. 



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364 LAW OP ADOPTION. [CHAI*. V, 

sued to establish his adoption. The Court held that 
** from the moment that Dharnidhar died and his estate 
was vested in his widows, the right of his daughter-in- 
law, Venubai, to adopt, for the purpose of inheritance was 
at an end." ** Even if Luxumibai assented to the adoption 
of plaintiff by Venubai, the plaintiflf's claim would not 
stand against the rights of Dharnidhar's collaterals who 
' have come in now that Luxumibai is dead ; and though 
she may have assented to Venubai taking a son for 
spiritual purposes, and agreed to recognise him as the 
principal ministrant at the Chinchwad shrine, whether as 
Venubai's adopted son, or as the son of Chinto who 
established his title as trustee, it is clear that these facts 
could not validate for the purpose of inheritance an 
adoption which, as regards the rights to property, was 
ab initio invalid.'' This decision was the cause of a 
reference to a Full Bench in the subsequent case of 
Vasudeo Vishnu v. Eamchendra Vinayek (ft). There, 
Vishnu had died leaving two daughters, Dwarka and 
Godi, and iSavitri the widow of his predeceased son, 
Vinayek. Savitri adopted the plaintiff after Vishnu's 
death. It was found as a fact that the daughters had 
consented to the adoption. No decision was given by the 
Full Bench as to the eflfect of the assent as one of the 
daughters who had assented was a minor whose assent 
was, of course, invalid. Farran, C. J., who had been a 
party to the decision in Bapu Anaji v, Eatnoji (c) admitted 
that it had been passed in ignorance of the Madras case 
Annamah r. Mabbu {d) and of the dictum in Dharnidhar v. 
Chinto just quoted. In consequence of the minority of 
Godi it was unnecessary to consider the eflfect of consent, 
if given by persons of full age, though he considered that 
the question was not concluded by any judgment of the 
Privy Council. He was of opinion that in any case the 
subsequent ratification of the adoption by the minor after 
she came of age was worthless. The adoption must be 
either valid or invalid when it takes place, and cannot be 

(6) 2 Bom., 551. ( c) 21 Bom., 319. (rf) 8 Mad. £[70.7108. ^ 



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PARA. 195.] DEVESTING OP PREVIOUS ESTATE. 2SS 

made good by matter subsequent. Banade, J., thought 
that a complete consent would make the adoption good. 
** M ere presence at the ceremony and the absence of any 
objection might imply an acquiescence, but it has been 
ruled that mere acquiescence is not consent.*' 

§ 195. It is not quite clear whether the Judj^es in all Question 

... difloassed. 

these cases had present to their mmds, the distmction 
between an assent which made the adoption valid ab initio 
against the world, and one which estopped the asserting 
party from resisting it (ante § 160). To make the adop- 
tion valid ab initio, the widow must have had a sufficient 
authority, which was capable of being acted on at the 
time it was exercised. If the Bombay Courts have been 
right in holding that a widow in Western India can only 
adopt at her own discretion where the estate has vested 
in her, and where she affects no interest but her own and 
those of her co-widows, then, in every other case, she will 
require such an authority as is sufficient in the case of a 
widow in Madras. No one can give her such an authority 
but her husband, her father-in-law, or the male sapindas. 
If she has not received such an authority she has none, 
and her adoption is a mere nullity, and any consent to it 
would be ineffectual (e). The same difficulty would arise 
under the series of Privy Council decisions beginning with 
Bhoobun Moyee's case (ante § 115). These establish that 
even an authority to adopt, which was perfectly valid 
when it was given, comes to an end and becomes in- 
capable of being executed, when by successive devolutions 
the actual holders of the property cease to occupy a 
relation to the giver of the authority which entitles him 
to affect their rights. In the case of Thayammal v. 
Venkatarama Aiyan (/), it was argued that the adoption 
itself might be perfectly good, though it was ineffectual 
against the person in possession. This view was rejected 
by the Judicial Committee, who treated the adoption 
as invalid for every purpose. It is clear that a consent to 

( e) Anandibai v Kashibai, 28 Bom., 461 . 
(/) 14 r. A., 67 ; S. C, 10 Mad., 205. 



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966 



Son's Mtate 
postponed. 



LAW OF ADOPTION. [cHAP. V, 

the doing of an absolutely void act, which the consenting 
party cannot authorise, can give no validity to the act, 
though it may prevent the consenting party from insisting 
on its invalidity. Lastly, if it were possible to treat 
consent as amounting to authority, it would be necessary 
to show that the consenting party knew that the adoption 
was worthless without consent, and assented to it, not 
as a lawful, but as an unlawful act (g). In the majority 
of the cases where assent was treated as curing the defect 
in an adoption, there seems no reason to suppose that any 
doubt as to its legality was entertained. 

§ 196. In Bengal, where a father has the absolute 
power of disposing of his property, he may couple with 
his authority to the widow to adopt, a direction that the 
estate of the widow shall not be interfered with during 
her life, or indeed any other condition derogating from 
the interest which would otherwise be taken by the 
adopted son (h). In provinces governed by the Mitakshara 
law, where a son obtains by birth a vested interest in 
his father*s ancestral property, a person who has once 
made a complete and xmconditional adoption could not 
derogate from its operation either by deed durin^^ his 
lifetime or by will, unless, according to recent decisions, 
the property is impartible (i). But where a man made a 
disposition of part of his property which was valid when 
made, and as part of the same transaction took a bov in 
adoption, the father of the adopted boy being aware of 
the provisions of the will, and assenting to them, and 
knowing that the testator would not have made the adop- 
tion without such assent, it was held that the will was 
valid against the adopted son {k). If, however, a will 

(g) Raghunatha v. Broao KUhoro, 3 1. A., 154, p. 192 ; S. C, 1 Mad., 69, p. 82. 

(//) Radhamonte v. JadubnarcUn, S. D. of 1665, 139; Pro$unnofnoyee ▼. 
Bamaoonder, B. D. of 1859, 162; Bepin Behari\. Brojonath Mookhopadya, 
8 CaI , 367. 

( i ) Sartaj Kuari v. Deorajkuari, 16 1. A., 61 ; S. C, 10 AH., 272 ; Venkaia 
a wry a Mahtpati v. The Court of Wards, 26 I. A, 83 ; S. C, 22 Mad.. 888. 

(Ar; Lakahmiv. Subramanyay 12 Mad., 490; Narayanaaami v. JBamaaam*, 
14 Mad., 172 ; Oanapathi Aiynn v. Savithri, 21 Mad., 10 ; Vinayek Narayan t. 
Oovindrav Gktntaman, 6 Bom. H. C, A. C, 224; Baaava v. Linoanaavda, 
19 Bom., 428. 



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PARA. 196.] EFFECT OF ACTS OF PREVIOUS HOLDER. iJ67 

disposed of the whole of the testator's property, making 
no provision for an adopted son, it would probably be held 
that a subsequent adoption operated as a revocation of 
the will (Z). It has been held in Bombay that if the 
parent of the boy, when giving him in adoption, expressly 
agree with the widow that she shall remain in possession 
of the property during her lifetime, and she only accepts 
the boy on those terms, the agreement will bind him, as 
being made by his natural guardian, and within the 
powers given to such guardian b}^ law (m). In a later 
case, however, before the Privy Council, the effect of a 
similar agreement was much discussed, and not deter- 
mined. The Committee refused to decide more than that 
such an agreement was not absolutely void, and therefore 
might be ratified by the youth on arriving at full age (w). 
In a subsequent case the Committee intimated a consid- 
erable leaning against such an agreement, though under 
special circumstances. The Maharajah of Balrampur 
gave his widow an authority and order to adopt a son 
'* according to the custom of the family and according to 
the Hindu law.'* The adopted son was ** to be in place 
of an actual son, the owner of the entire riasat and the 
assets, moveable and immoveable," the widow taking a^ 
provision for maintenance. The widow arranged for an 
adoption, and obtained from the father of the boy to be 
adopted a document in which it was declared that she 
should have full control, during her lifetime, over the 
property left by the late Maharajah. A subsequent adop- 
tion deed contained no condition of the kind, nor did 
anything take place at the adoption pointing to any such 
condition. Subsequent to the adoption the widow executed 
a second deed purporting to revoke the deed of adoption, 
on the allegation that it ought to have contained a 

( I ) Per Couch, C. J., 6 Bom. H. C, A. C, p. 230, Q\i\n%futwah of a pandit ; 
6M. I. A., p. 830. 

Jm) Chitko Jiaghunath v.Janaki, U Bom. U. C, 199; followed Ravji 
Vmayakrav ▼. LcJumibai. 11 Bom., 881, p. 39ti. See as to the effect of Huch 
an Arrangement ; Anton v. Dattaji^ 19 Bom., 86. 

(n) BamcLaawmi v. Vencataramaiyan^ 6 I. A., 196 ; S. C, 2 Mad., 91. 

17 



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2fift LAW OF ADOPTION. [CHAP. V, 

provision postponing the interest of the adopted son till 
after her death. Lord MacNaghten said : " It is difficult 
to understand how a declaration by Gaman Singh, or an 
agreement by him, if it was an agreement, could prejudice 
or affect the rights of his son, which could only arise 
when his parental control and authority determined. The 
ceremonies of adoption are unimpeached, the deed of 
adoption is open to no objection, the second deed is admit- 
tedly inoperative. No conditions were attached to the 
adoption. Had it been otherwise, the analogy, such as it 
is, presented by the doctrines of Courts of Equity in this 
country relating to the execution of powers of appointment 
would rather suggest that, even in that case, the adoption 
would have been valid and the conditions void " (o). The 
Madras Court has in several cases refused to recognise 
the validity of such agreements (p). The question 
recently arose again before the Madras High Court in 
circumstances exactly similar to those in Jagannada v. 
Papamma, and was referred to a Full Bench. It decided 
that such an agreement when it formed part of the 
negotiation preceding the adoption, and was embodied 
in the deed of adoption, came within the powers of the 
father acting as guardian of his son in granting him 
in adoption, and would bind the son if ** the agreement 
in regard to the property was in itself a fair and reasonable 
one, and one which, taken as part of the contract for the 
adoption, was for the minor's benefit, as being a condi- 
tion on which alone the adoption would be made." As 
regards the language of Lord MacNaghten above quoted, 
it was pointed out that in the case before the Judicial 
Committee the agreement was previous to the adoption, 
and was not embodied in the adoption deed, or referred 
to at the time of adoption, and that the object of the suit 
was not to enforce the agreement, but to annul the adop- 

(o) Bhaiya Badibat Singh v. Inder Kuar, 16 I. A., 53, p. 59; 8. C, 16 Cal., 
66. 

{p) Narainah v. Savoobhady^ Mad. Dec. of 1854, 117 ; Lahshynana Bau v, 
Lakahmi AmmaU 4 Mad., 160; Jagannada v. Papamma^ 16 Mad., 400. 



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PABA. 197.] EFFECT OF ACTS OF PREVIOUS HOLDER. 269 

tion (q). An agreement by the adopted son himself when 
of full age, waiving his rights in favour of the widow, 
would be valid (r). And he may after adoption renounce 
all rights in his adopted family ; but this will not destroy 
his status as adopted son, nor restore him to the position 
he has abandoned in his natural family. Upon his 
renunciation the next heir will succeed (s), 

§ 197. The second question, which arises in the case of Son'erighUdAte 
an adoption by a widow after her husband's death, is as to 
the date at which the rights of the adopted son arise. It 
has been suggested that a son so adopted must be consid- 
ered as a posthumous son, and that his rights would 
relate back to the death of the father when he ought to 
be considered as having been born, or even to the date of 
the authority to adopt, when he ought to be considered as 
having been conceived. The whole of the authorities on 
the point were examined in an elaborate judgment of the 
Sudder Court of Bengal, which was appealed against, and 
adopted in its entirety by the Privy Council, and which 
may be considered as having settled the question (t). The 
point for decision in the case was, whether a widow, who 
had received an authority to adopt, was thereby debarred 
from suing for her husband's estates in her own right. 
It was argued that she must be considered as a pregnant 
widow, and could only sue on behalf of the son whom 
she was about to bring forth. The Court refused to act 
upon any such fancyful analogy, and laid it down that, 
although a son, when adopted, entered at once into the 
full rights of a natural-born son, his rights could not 
relate back to any earlier period. Till he was adopted, 
it might happen that he never would be adopted ; and 
when he was adopted, his fictitious birth into his new 

(q) Visalakahi v. Sivaramien^ 27 Mad., 577, p. 685. 

(r) Mt. Tara Munee v. Dev Narayun, 3 S. D., 387 (516) ; 2 W. Mac N., 183 ; 
Mt. Bhugohtitty v. Chowdhry Bhola^uith, 16 Suth., 63. 

{8} Buvee Bhudr v. Boopshunker, 2 Bor., 656, 662, 665 [713] ; Mahader Garni 
V. Hayaji Sidu, 19 Bom., 239. 

(t) Bamundo88 y. Mt. Tarinee, S. D. of 1860,633 ; 7 M. I. A., 169. Bee cases 
ooHected, 8 M. Dig., 186 ; Narain McU v. Kooer Narain, 6 Cal., 251 ; Bambhat 
T. Lakshmanj 6 Bora., 6Sk). 



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360 LAW OF ADOPTION. [CHAP. V, 

family could not be ante-dated. It must not, however, be 
supposed that an adopted son would necessarily have to 
acquiesce in all the dealings with the estate between the 
death of his adoptive father and his own adoption. The 
validity of those acts would have to be judged of with 
reference to their own character, and the nature of the 
estate held by the person whom he supersedes. Where 
that person, as frequently happens, is a female, either a 
widow, a daughter, or a mother, her estate is limited by 
the usual restrictions which fetter an estate which 
J descends by inheritance from a man to a woman. These 
restrictions exist quite independently of the adoption. 
The only effect of the adoption is that the person who can 
question them springs into existence at once, whereas, in 
the absence of an adoption, he would not be ascertained 
till the death of the woman. If she has created any 
incumbrances, or made any alienations which go beyond 
her legal powers, the son can set them aside at once. If 
they are within her powers, he is as much bound by them 
as any other reversioner would be (u). And he is also 
bound, even though they were not fully within her powers, 
provided she obtained the consent of the persons who, at 
the time of the alienation, were the next heirs, and 
competent to give validity to the transaction (v). One 
case goes a good deal beyond this. A widow adopted a 
son under the authority of her husband. She succeeded 
him as his heir, and made an alienation, and then adopted 
another son. The Court held that the alienation was 
gopd as against the second adopted son (m?). The decision 
was given without any inquiry as to the propriety of the 
alienation, and was rested on the authority of Chundra- 



(m) Kishenmunnee v. Oodwunt^ 8 8. D., 220 (304); Bamkishen ▼. Mt. 
Strimutee, 3 S. D., 367 (489), explained 7 M. I. A., 178 ; Doorga Soonduree v. 
Goureepersad, 8. D. of 1856, 170; SreenathBoy v Bvtiunmulla, S. D.of lb69, 
421; Manikmulla v. Parbuttee^ ib., 615; Ijakshmona Bau v. Lakshmi 
Ammal,4 Mad., 160; per cvriam^ 8 M. I. A.,jp. 443; Lakahman Bhav v. 
Biidhabah H Bom.^ 609; Antoiji v. Dattajif 19 Bom., 36; Jl^oro Narayen v. 
Balaji BaghujiatK ib., 809. 

(v) Bajkristo v. Kishoree, 8 Sath., 14. 

(w) Qohindonath v. Bamkanay^ 24 Suth., 183, approyed per cur., KaUy 
Prosonno v. Qocool Ohunder, 2 Cal., 807. See per curiam, 11 Bom., 614. 



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PABA. 197.] EFFECT OP ACTS OP PREVIOUS HOLDER. 261 

buUee's case (x). It does not seem to have occurred to the 
Court that a mother had no more than a limited estate, 
which, upon the authority of the case cited, was devested 
by the adoption. The son then came in for all rights 
which had not been lawfully disposed of, or barred, during 
the continuance of that estate (y). 

A recent decision in Madras was founded upon a view 
which, if finally established, cuts at the root of much of 
the above reasoning. It was there laid down, upon the 
very high authority of Bhashyem Iyengar ^ J., that alien- 
ations made by a widow before she exercised her power 
of adoption could not be set aside by the adopted son 
during her life. The decision rested on the view that 
previous to the adoption the widow was in possession of an 
estate which enabled her, first, to alienate it permanently 
for necessary purposes ; secondly, to alienate it during her 
widowhood for purposes which were not necessary. It 
was held that the adopted son was equally bound by each 
alienation to the extent to which it was valid. It was 
admitted that no such decision had ever been given before, 
because the point had never been raised and considered (z). 
When the case arises again it will be material to consider 
whether the widowhood, meaning the possession of a 
widow's estate, was not terminated by the act of adoption 
as much as by civil death. 

. A different case which has arisen is where a widow gets 
and retains bond fide possession of her husband's estate, 
and is subsequently met by a claimant who asserts that 
he is entitled as adopted son. In this case the Court held 
that, in the absence of negligence, the plaintiff who 
obtained a decree for mesne profits was only entitled to 
the rents actually collected, and that the widow was en- 



(«) Bhoobum Moyee v. Bam Kishore, 10 M. I. A., 279 ; S. C, 3 Suth. (P. C), 
15 ; ante $ 172. 

(y) See as to the effect of autB done during the estate of a womtiii, post $ 626, 
as to the effect of a decree passed against a widow before the adoption, see Hari 
Saran Moitra ▼. Bhubaneawari, 16 I. A., 196 ; S. C, 16 Cal. 40. 

(s) Sreeramalu v. KrUtamma^ 26 Mad., 113, p. 14b. 



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AotB of previ 
male holder. 



2fi2 LAW OP ADOPTION. [cHAP. V, 

titled to set oflf her claim for maintenance, and for such 
sums as she had lawfully expended on behalf of her 
husband's funeral ceremonies. If she could have shown 
that she had incurred other proper and necessary outlay, 
within a widow's authority, the decree would no doubt 
have declared her right to set off in respect of it also (a). 
In this case it will be observed that the adoption which 
was subsequently established must have been made by 
the husband in his life. Therefore the widow's estate 
never existed, and she was all along in the position of a 
trespasser, who falsely but bond fide thought she had a 
good title. 

§ 198. I am not aware of any case which has raised 
the same question, where the person whose estate was 
devested by adoption was a male, and therefore afuU owner. 
But I conceive the same principles would apply. Until 
adoption has taken place he is lawfully in possession, 
holding an estate which gives him the ordinary powers of 
alienation of a Hindu proprietor. No doubt he is liable 
to be superseded ; but, on the other hand, he never may 
be superseded. It would be intolerable that he should be 
prevented from dealing with his own, on account of a 
contingency which may never happen. When the contin- 
gency has happened, it would be most inequitable that 
the purchaser should be deprived of rights which he 
obtained from one who, at the time, was perfectly 
competent to grant them. Accordingly , where the brother 
of the last holder of a Zemindary was placed in possession 
in 1869, and subsequently ousted by an adoption to the 
late Zemindar, the Privy Council held that he could not 
be made accountable for mesne profits from the former 
date. Their Lordships said : ** At that time Baghunada 
was, in default of a son of Adikonda, natural or adopted, 
unquestionably entitled to the Zemindary. The adoption 
took place on the 20th November, 1870, and the plaint 
states that the cause of action then accrued to the plaintiff. 

(a) Date Kwnwar v. Ambika Partab, 25 All., 266. 



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PARAS. 198 — 200.] KRITRIMA ADOPTION. 388 

The plaint itself was filed on the 15th December, 1870, and 
there is no proof of a previous demand of possession. 
Their Lordships are of opinion that the account of mesne 
profits should run only from the commencement of the 
suit " (6). 

i$ 199. It is hardly necessary to say that, as under the Widow oannoi 
ordinaiy Hindu law an adoption by a widow must always ^^ 
be to her husband, and for his benefit, an adoption made 
by her to herself alone would not give the adopted child 
any right, even after her death, to property inherited 
by her from her husband (c). Nor, indeed, to her 
own property, however acquired, such an adoption being 
nowhere recognized as creating any new status, except in 
Mithila, under the Kritrima system, and apparently in 
Pondicherry (post § 205). But among dancing girls it is Danoing giris. 
customary, in Madras and Pondicherry and in Western 
India, to adopt girls to follow their adoptive mother's 
profession, and the girls so adopted succeed to their pro- 
perty. No particular ceremonies are necessary, recognition 
alone being sufficient (d). In Calcutta and Bombay, * 

however, such adoptions have been held illegal {e), 
A recent attempt by a Brahman in Poona to adopt 
a daughter, who should take the place of a natural-born 
daughter, was held to be invalid by general law, and not 
sanctioned by local usage (/). 

§ 200. Kritrima ADOPTION. — According to the Da^^aia ^iSfli"*'^ 
Mimamsa, the Kritrima form is still recognized by the 
general Hindu law, since the modern rule, which refuses 

i6) Raghunadhav. Brozo Klshoro, 3 I. A., 154, 193 ; S. C, I Mad., 69; S. C, 
25 Suih., 291 . This point was noticed bnt not decided by BhaHhyem Iyengar, J., 
in ft decision already referred to 26 M^d., p 152. As to alienations by the father 
himself, see post •> 252. 

(r) Chowdhry Pudum v. Koer Oodey, 12 M. I. A., 350 ; S. C, 12 Suth. (P. C). 
1 ; S C, 2 B. L. R. (P. C.}, 101. 

[d) Venkatachellum V. Venkatn^twamt/, Mad. Dec. of 1956, 65; Stra. Man., 
5 98, 99 ; Steele, 186, 186 ; Sorg H. L., 324 ; Co. Cc.n., 90, 124, 337, 341. In the 
ab«:ence of a special cnstom, and on the analogy of nn ordinary adoption, only 
one girl cin be adopted, Venku v. Mahalhiga, 11 Mild., 393 ;'Muttukannu v. 
Paramanamiy 12 Mad., 214. 

{e) Heneower v. Hanscower, 2 M. Dig., 133; Maihura v. Esn, 4 Bom., 545; 
see the discn»*?ion on thin «»ubje^t. anf^ 5- 55. 

(/i Oangabai v. Anani, 13 Bom., 690. 



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264 LAW OP ADOPTION. [cHAP. V, 

to recognize any sons except the legitimate son and the 
son given, includes the Kritrima under the latter term {g). 
But the better opinion seems to be that this form is now 
obsolete, except in the Mithila countrj' where it is the 
prevalent species (A), and among the Nambudri Brahmans 
of the West Coast where it exists along with the usual 
form {%), The cause of its continuance in Mithila is 
attributed by Mr. MacNaghten to the rule which exists 
there, which forbids an adoption by a widow even with 
her husband's authority. As the tendency of man is to 
defer an adoption until the last moment, the form which 
could be most rapidly and suddenly carried out naturally 
found most favour (A:). This cannot be the reason for 
the existence of this form among the Nambudri Brah- 
mans, who allow a widow to adopt without her husband's 
consent (Z). Probably, in each case, the Kritrima has 
maintained a successful competition with the Dattaka 
form as being laxer in its rules, and therefore easier of 
application. 
D^^nSMi. ^ 201. The Kritrima son is thus described by Manu (m) : 

** He is considered as a son made (or adopted) whom a man 
takes as his own son, the boy being equal in class, endued 
with filial virtues, acquainted with (the) merit (of perform- 
ing obsequies to his adopter) and with (the) sin (of omit- 
ting them). *' The Mitakshara adds the further definition 
** being enticed by the show of money or land, and being 
an orphan without father or mother ; for, if they be living, 
he is subject to their control " (n). 

§ 202. The consent of the adoptee is necessary to an 
adoption in this form (o), and the consent must be givea 
in the lifetime of the adopting father (p). This involves 

(a) Dattaka Mimamaa, ii., § 65. 

{h) Sath. Syn., 668. 674 : 3 Dig., 276 ; 2 Stra. H. L., 202 ; note to Sutputtee ▼. 
Indranund, 2 S. D., 178 (221); Madhaviya, § 82. Mr. Sarvadhikari says (626) 
that this form of adoption is still practised in Behar, Benares and other places, 
citing the note to Srikant Sarma v. Radhakantf 1 S. D. A., 15 (19). 
. (» ) 11 Mad., 174. 176. ante § 44. ( *) 1 W. MacN., 97. 

( I) 11 Mad., 174, 176. (m) Mon., ix., § 169. (n) Mitakshara, i., 11. § 17. 

io) Suth. Syn., 673 ; Baudhayana, ii., 2, 14 ; 2 W. MacN., 196. 

Ip) Sutputtee V. Indranund,2S. D., 178(221) ; Durgopalv. Rooptin, 6 S. D., 
271 (340); Luchman v. Mo\un, 16 Suth., 179. 



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PABAS. 201 — 203.] KRITRIMA ADOPTION. 265 

the adoptee being an adult. Consequently there appears Only •dvH i. 
to be no limit of age. The initiatory rites need not be 
performed in the family of the adopter, and the fact that 
those rites, including the upan/fyana, have already been 
performed in the natural family is no obstacle (q). Even 
marriage can be no obstacle, for it is stated by Keshuba 
Misra in treating of this species of adoption that a man 
may even adopt his own father (r). 

§ 203. The great distinction between this species of Nor^triotioM 
adoption and the dattaka, appears to be that the fiction of 
a new birth into the adoptive family, with the limitations 
consequent upon that fiction, do not exist. A Kritrima 
son ** does not lose his claim to his own family, nor assume 
the surname of his adoptive father ; he merely performs 
obsequies, and takes the inheritance '' (s). Hence any] 
person may be adopted who is of the same tribe as his 
adopter, even a father as above stated, or a brother. In 
one case, from the Mithila district, it was stated by the 
pundits and held by the Court that an adoption of 
an elder brother by the younger was invalid {t). But 
Mr. MacNaghten points out that the authorities relied 
upon in that case related exclusively to the dattaka form. 
A daughter's son may be adopted, and so may the son of a 
sister {u). For the same reason, the prohibition against 
adopting an only or an eldest son does not apply to a 
Kritrima adoption (v). It has been held in the case last 
cited that, where a brother's son exists, no other can be 
adopted. But the opinion of the pundits was principally 
founded upon texts applying to the dattaka form, and 
which, with reference to that form, have been long since 

iq) 2 Stra. H. L., 204 ; 2 W. MacN., 196 ; Shibo Koeree v. Joogun, 8 Suth., 
155; S. n., 4 Wyra.. 121. 

(r) 1 W. M»cN.. 76 ; Chowdreev. Hunooman, 6 S. D., 192 (235) ; Ooman Dnt 
T. Kimhia, 3 S. D., 146 (192). 

(«) 8 Dig., 276, n ; 1 W. MacN.. 76. 

\t) Bunjeet Singh v. Obhya, 2 S. D., 245 (315). See 1 W. MacN.. 76, n. 

(u) Ooman Duf v. Kunhia, 8 S. D., 144 (192) ; Chowdree v. Hunooman^ 
6 S. D., 192 (2:)5). 

(tj) Ooman Dut v. Kunhia, 3 S. D., (197) ; 2 W. MacN., 197, where, however, 
(he opinion of the punditfl was baaed upon the fact that the adopter was the 
uncle of the adoptee. 



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966 LAW OF ADOPTION. [CHAP. V, 

held to be no longer in force. It is probable, therefore, 
that they would be held inapplicable to the Kritrima form, 
which is so much laxer in its rules. 
B«saiit of adop j § 204. As regards succession, the iin^r ima SOU loses DO 
rights of inheritance in his natural family. He becomes 
the son of two fathers to this extent, that he takes the 
inheritance of his adoptive father, but not of that father's 
father, or other collateral relations, nor of the wife of his 
adoptive father, or her relations {w) . Nor do his sons, etc., 
take any interest in the property of the adoptive father, 
the relationship between adopter and adoptee being limit- 
ed to the contracting parties themselves, and not extend- 
ing further on either side {x). Among the Nambudri 
Brahmans (ante \ 44), where it is desired to perpetuate 
the line of the adopter, the adopted son receives a special 
appointment to marry and raise up issue for the illom or 
line of the adopter (ij). 
Female may § 205. It has already been stated that in Mithila a 

aoop ene . ^^j^^^j^ cannot adopt to her husband, after his death, 
whether she has obtained his permission or not. But she 
is at liberty to do in Mithila, what she can do nowhere 
[I else, viz.y adopt a son to herself, and this she may do either 
during her husband's life, or after his death. And husband 
and wife may jointly adopt a son, or each may adopt 
separately. ** If a woman appoint an adopted son, he 
stands in the relation to her of a son, oflfers to her funeral 
oblations, and is heir to her estate ; but he does not become 
li the adopted son of her husband, nor offer to him funeml 
oblations, nor succeed to his property. If a husband and 
wife jointly appoint an adopted son, he stands in the 
relation of son to both, and is heir to the estate of both. 
If the husband appoint one, and the wife another adopted 
son, they stand in the relation of sons to each of them 
respectively, and do not perform the ceremony of offering 

(w) See note to Srinaih Serma v. Badhahuiit, 1 S. D., ]5 (19) ; 1 W. MacN., 
76 ; Deepoo v. Gowreeshunker, 3 S. D., 307 (410) ; Sreennrain Itaiv BhyoJha^ 
2 8. D., 23 (29, 34) ; Shioo Koeree v. Jugun, 8 Suth., 166 ; S. C, 4 Wym., 121. 

(x) Juswavt Dvolee, 25 Sutii., 266. iy) U Mad., 168, 175, 179. 



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PABAS. 204 — 206.] KRITRIMA ADOPTION. 2fiT 

f oneral oblations, nor succeed to the estate of the husband 
and wife jointly '' (z), A similar usage can be traced 
among the records of the Pondicherry Courts in 1790 and 
1796. So lately as 1893 the right of a widow to adopt an 
heir to her own property has been asserted (a). 

§ 206. No ceremonies or sacrifices are necessary to the Ceremoniea. 
validity of a Rritrima adoption. ** The form to be 
observed in this : At an auspicious time, the adopter of a 
son having bathed, addressing the person to be adopted, 
who has also bathed, and to whom he has given some 
acceptable chattel, says : * Be my son.' He replies * I amj 
become thy son.* The giving of some chattel to him arises 
merely from custom. It is not necessary to the adoption. 
The consent of both parties is the only requisite : and a set 
form of speech is not essential '* (b). 

Among the Buddhists of Burma the term Kritrima 
adoption is applied to cases where one or more girls are 
adopted into a family as daughters. The essential part 
of such an adoption is publicity and notoriety of the fact 
of adoption — publicity of the relationship and of the 
intention of the adoptive parents in regard to the 
inheritance of their estate by the adoptive child. There 
are two kinds of adoption — the Kritrima child who is j 
obtained from its own parents and openly brought up with 
a view to inherit ; the Apatitha, who has no parents and i 
has been casually picked up and adopted. The former ' 
stands in the same position as a natural child for all 
purposes, including the right to inherit. The latter is 
excluded from inheritance by either natural or Kritrima 
children (c). 

It is a curious thing that this form of adoption, which Similar form 
now only exists in Mithila and among the Nambudris of Jlfoa. 

(«) Fatwah of pandits, Srte Narain Rai v. Bhija Jha, 2 S. D., 23 (29, 34) ; 
1 W. MacN., 101 ; Collector of Tirhoot v. Huropershad, 7 Suth., 600 ; Shibo 
Koeree v. Jugun, 8 Suth., 156 ; S. C, 4 Wym., 121. 

(a) Sorg H. L., 116, 126, 140; Co. Con., 376. 

(6) Rudradhara, cited note to Mitakahara, i., 11, § 17 ; 1 W. MacN., 98 ; Kill- 
lean v. Kirpa, 1 S. D., 9 (11) ; Durgopal v. Roopnri, 6 S. D., 271 (340). 

(c) Ma Me Gale v. Ma Sa Yi, «2 I. A., 78. 



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268 LAW OP ADOPTION. [cHAP. V, 

Western India, is almost identical in its leading features 
with that at present practised in Jaffna. There is the 
same absence of religious ceremonies, the same absence of 
any assumed new birth, and the same right of adoption 
both by husband and wife, followed by the same results of 
heirship only to the adopter (d). The explanation given 
by Mr. MacNaghten ( § 200) may account for the survival 
of the Kritrima adoption : but it does not explain its 
origin. It seems plain that both the Mithila and the 
Ceylon form arose from purely secular motives, and 
existed anterior to, and independent of Brahmanical 
theories. The growth of these put the Kritrima form out 
of fashion. But the similar type continued to flourish in 
Ceylon, where no such influence prevailed. An enquiry 
into the usages of the Tamil races in Southern India 
would probably disclose the existence of analogous 
customs, as already appears to be the case in Pondicherry. 

liteiom tdop- I S 207. A custom known as that of Illatom adoption 
prevails among the Beddi caste in the Madras Presidency. 
It consists in the affiliation of a son-in-law, in consideration 
of assistance in the management of the family property. 
No religious significance appears to attach to the act. It 
seems uncertain whether such an affiliation can take place 
where there is already a son, or whether the person so 
affiliated can claim a partition during the life of his adopt- 
ing father. Apparently the right to a partition, like every 
other incident of this peculiar status, must be proved as a 
special custom. After the death of the adopter he is 
entitled to the full rights of a son, even as against natural 
sons subsequently born or a son subsequently adopted in 
the usual manner (e). The Illitom son is not a coparcener 
of the natural-born or adopted son, though they may live 
together like an undivided family. Consequently there is 
no survivorship between them. His share passes to his 

(d) Thenawaleme. ii. 

(e) Hanumantnutma v. Rami Reddi, 4 Mad., 272; Chinvanhaijym v. Sura 
Beddi, 21 Mad., 226; Naraaimha v. Veerahadra, 17 Mad., 287. 



iion, 



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PARAS. 207 & 208.] ILLATOM ADOPTION. 260 

own heirs as if it were separate property (/). As 
between himself and his own descendants he takes the 
property as self-acquisition, and therefore free from all 
restraints upon alienation (g). The property so taken 
descends to his relations, not to the heirs of the adopter (A), 
while he himself loses no rights of inheritance in his 
natural family (i). A very similar usage appears to exist 
in Pondicherry ; but the rights of the adopted son will be 
defeated by the subsequent birth of a son to the 
adopter (ft). 

§ 208. The systems of adoption in force in Malabar Adoption in 

... Mftlftbur. 

vary according as the adoptive family is governed by the 
Marumakattayam, or by the Makattayam rule of inher- 
itance. In the former case it is the absence of a female heir 
which threaten the family with extinction. Yet, in several 
cases cited by Mr. Wigram, adoptions, both of males 
and females in Nayar families, came before the Courts, Nayarg. 
and were supported by them. The right of adopting 
females seems to be undoubted, and Mr. Wigram says 
that the family of the Travancore Rajah would have 
been extinct long ago, but for the adoption of females to 
perpetuate the succession. In Canara it has been held 
by the Madras Sudder Court that the female ejaman or 
manager could not adopt if she had male issue living ; 
but this decision is doubted by Mr. Wigram on the ground 
that the proper object of adoption in such families is to 
maintain the female stock of descent {I). I am not aware 
of any reported decision on the subject of Marumakattayam 
adoptions, except that of Payyath Nanu Menon v. Thiru- 
thipalli Ramen Menon (m). The point actually decided 
was that, where the family was approaching extinction, 
only two aged males remaining, the karnaven could not 

(/) Chenchamma v. Subhaya^ 9 Mad., 114 ; MalH Beddi ▼. Padmamma, 17 
Mad., 114. 
(g) Chella Papi v. Chella Koti, 7 Mad. H. C, 26. 
{h\ Eamakriatna v. Subbakka^ 12 Mad., 442. 
( i ) Balarami v. P^a, 6 Mad., 267. 
(*) Sorg H. L., 141 ; Co. Con.. 138. 
( I ) Wigram, 4, 11, 12 citing Mad. Deo. 1859, p. 188. 
(m) 20 Mad., 61, tiffd. 27 I. A., 281 ; S. C, 24 Mad., 78. 



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270 LAW OF ADOPTION. [CHAP. V, 

make a valid adoption without the consent of his anan- 
draven. The record of the case, however, contains some 
interesting evidence not referred to in the report, which 
is worth preserving. Three adoptions in 1867, 1885 and 
1889 were proved, in two of which the last males of the 
tarwaad adopted three females, and in the last the mother 
and the last four males adopted one female. In a fourth 
case in 1886 a female, the last member of the tarwaad, 
adopted a male and a female. In the case itself the 
karnaven had adopted his own son and daughter, and the 
son and daughter of his daughter. One witness said that 
this was improper, because it was the custom that the 
sons of the adopter should marry the females who were 
adopted. Three other witnesses, one of whom was the 
Zamorin Bajah of Calicut, said that such adoptions were 
usual, and two instances of the kind were stated. As to 
the result of an adoption, one witness said that the 
adoptee lost her interest in her natural tarwaad. Two 
other witnesses were Vaidiks, to whom religious ques- 
tions were referred for decision. Of these, one said : ** In 
the case of an adoption by a Nair the adoptee retains 
his or her interest, in his or her own tarwaad or not, 
according to agreement entered into at the time of 
adoption between the two families ; but among Malabar 
Brahmans the adoptee does retain his interest in his Illom. 
* Dwyamushyayana * is the usual form of adoption among 
Nambudris.*' The other said : ** Among Nairsif the sole 
female of a tarwaad be adopted, she retains her interest 
in her natural tarwaad, and also acquires interest as a 
member of her new tarwaad." 

Makattftyam § 209. Among families which trace descent by sons, 

adoptionB. three systems of adoption prevail (n). The first strongly 

resembles the Kritrima, In it "ten hands, or five 

persons take part, viz.y the parents who adopt, the parents 

giving away, and the boy given away. If the boy should 

( m) TliiB account is drawn from the Report of the Travancore Census of 1891, 
p. 686. 



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PARA. 209.] ILLATOM ADOPTION. 271 

belong to the same gotra as the adopting family, then 
there is no limit to the age at which he may be adopted. 
But if he should belong to a different gotra ^ then the 
adoption must take place before he goes through the 
upandyana ceremony. The two families are equally 
entitled to the performance of the funeral rites and 
obsequies by the son.*' In the second form, the only 
ceremon}' consists in offering a dry twig of the Ficzis 
religiosa to the God of fire during the homum. A person 
thus adopted only performs the obsequies of his adoptive 
parents, and not those of their ancestors. The third form 
is resorted to only when the direct line of a man and his 
brothers is represented by an old man or a widow. 
*' Then, for the due performance of their obsequies, an 
heir is sought after from among the distant sapindas and 
collateral relations, with the consent of them all. The 
person so adopted performs the funeral rites of the old 
man or woman, and succeeds to his or her properties." I 
presume, though it is not stated, that, in the first and 
second kinds, the adopted son is heir to the persons whose 
obsequies he celebrates. 

The practice among Nambudris, that only the eldest Nambudm 
marries, necessarily limits the right of adoption to his line. 
" But if there be any male relative at all, however distant, 
then he is not entitled to the right of adopting. The 
nearest and oldest relative must be made to marry, and 
thus preserve the family continuity. But if there should 
be no prospect of his brothers getting issue, and if they 
should give their consent to the act, then he may have 
recourse to an adoption, to which the consent of the other 
relatives is not necessary. If, however, he adopts one of 
his distant relatives, in that case the consent of all his 
other relations, however distant, will be necessary '' (o). 

(o) Travancore Census, 1891, p. 686 ; Tottakara Numhudripad v. PoovuUy 
Nambudripad, Mad. Doc. 185o, 125 ; Keshadavan v. Vasud^van, 7 Mad., 297. 
In both these cases the adoption was made by a widow, and it is quite pohsible 
thej were cases of a Sarvaavara danam son-in-law, ante § 76 ; see Wigram, 
13-15. 



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r.-^ 



CHAPTER VI. 

FAMILY RELATIONS. 

Minority and Guardianship, 
Period of § 210. Minority Tinder Hindu law terminates at the 

nuoonty. 

age of sixteen. There was, however, a difference of 
opinion as to whether this age was attained at the begin- 
ning, or at the end, of the sixteenth year. The Hindu 
writers seem to take the former view (a), and this was 
always held to be the law m Bengal (b). The latter limit 
is stated to be the rule in Mithila and Benares, and was 
followed in Southern India and apparently in Bombay (c). 
Different periods were also fixed for special purposes by 
statutes, which it does not come within the scope of this 
work to discuss. These variances will soon lose all import- 
ance in consequence of Act IX of 1875, which lays down, 
as a general rule for all persons domiciled in British India 
or the Allied States, that in the case of every minor of 
whose person or property a guardian has been, or shall be, 
appointed by any Court of Justice, and of every minor 
under the jurisdiction of any Court of Wards, minority 
terminates at the completion of the twenty-first year : 
in all other cases, at the completion of the eighteenth 
year (d). Where a guardian has once been appointed by 
a Court of Justice, minority will last till 21, whether the 

(a) 1 Dig., 293; 2 Dig.. 115 ; Mitakshara on Loans, cited V. Darp., 770; Dftja 
Bhaga, iii., 1, § 17, note ; Dattaka Mimamsa, iv., § 47. 

(fc) 1 W. MacN , 103 ; 2 W. MacN.. 220, 28^i, note ; Callychurn v. Bhvggohutty, 
10 B. L. R., 231 ; S. C, 19 Suth., 110; Mothoor Mohunw. Surendro, 1 Cal.,lCl8. 

(«) W. MacN., ub. svp. ; I Stra. H. L., 72; 2 Stra. H. L.. 76, 77 ; Laehman 
V. Bvpchand, 5 S. D., 114 (136) ; Shtvji v. Datu, 12 Bom. H C, 281, 290. 

{d) Khwahxah v. Surjv, 8 All , 698 ; Beade v Krishna, 9 Mad., 391. As to 
whether the appointment is complete until a certificate has actually been iasned, 
bce under Bombay Minors Act Xa of 1&C4 ; Yehnath v. Warvhai^ 13 Bom., 265 ; 
under Bengal Act XL of 1858 ; Mvngniram \. Mohunt Oursahai, 16 I. A., 196; 
8. C, 17 Cal., 847. A Collector appointed under Act XL of 1858, a. 7, is a guaxd- 
ian within the meaning of Act IX of 1876, b. 3, but one appointed under a. 19 
is not, 17 Cal., p. 948. 



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PARAS. 210 & 211.] ORDER OF GUARDIANSHIP. 873 

guardian so appointed continues to act or not, or has or 
has not taken out a certificate (e). But where the Court 
of Wards has assumed jurisdiction, the disability of 
minority only continues so long as the Court of Wards 
retains charge of the minor's property, and no longer (/). 
The Act is not to affect any person in respect of marriage, 
dower, divorce, or adoption. Where the fact of minority 
is itself in dispute, a certificate of guardianship is not 
evidence of the fact, nor is a horoscope admissible for that 
purpose ig). 

§ 211. Guardianship^ — The Hindu law vests the guard- 
ianship of the minor in the sovereign 8,s parens patrice. 
Necessarily this duty is delegated to the child's relations. 
Of these the father, and next to him the mother, is his 
natural guardian. In default of her, or if she is untlt to pider of guMd- 
exercise the trust, his nearest male kinsmen should be 
appointed, the paternal kindred having the preference 
over the maternal (h). Of course, in an undivided family, 
governed by Mitakshara law, the management of the 
whole property, including the minor's share, would be 
vested in the nearest male, and not in the mother. It 
would be otherwise where the family was divided (i). But 



ianship. 



{e) Hudra Frokash v. Bholanath Mukheriee, 12 Cal., 612 ; Girish Chunder v. 
Abdul Selam, 14 Cal., 55 ; GordlumDasv. Harivaluhh Das, 21 Bom., 281 . As to 
the duration of a guardianfthip ad litem, see Jwala Dei v. Pirabhu, ]4 All., 36. 

If) Birimohun Lai v. Biidra Per hash, 17 Cal., 944. 

(g) Saliachunder t Mohendro Laly 17 Cal., S49 ; Ounraj Kuar v. Ablokh 
P«n<i<, 18 All., 478. 

{h) Mano, viii., § 27 ; ix., S 146, 190, 191 ; 3 Dig., 542—644 ; P. MacN., 25 ; 
1 8tra. H. L., 71 ; 2 Stra. H. L., 72—76 ; Qungama v. Chendrappa, Mad. Dec. of 
1869, 100; 1 W. MacN., 103; Mooddookrishna v. Tandavaroy, Mad. Dec. of 
1862, 106; iiuhtaboo v. Gunesk, S. D. of 1864, 329. Under Mithila law, how- 
ever, it has been held that the mother is entitled to be guardian of the person of 
her minor son in preference to the father. Juaaoda v. ZaUah Nettya, 6 Cal. , 48. 
As to the claim of the step-mother, see Lukmee v. Umurchundf 2 Bor., 144 
[168]; Bam Bunsee v. Soobh Koonwaree, 7 Suth., 321 ; 8. C, 3 Wym., 219; 
8. C. 2 In. Jur., 103; Baee Sheo v. Buttonjee, Morris, Pt. I, 103. As to the 
Punjab, see Punjab Customary Law, II, 133. A Hindu mother cannot appoint 
a ^ardian for her child by wiu. Where she has professed to do so, the actual 
appointment must be made under Act VIII of 1890, ss. 7, 8 ; Venkayya v. Venkata^ 
21 Mad., 401 ; see Pathan AUkhan v. Bat Pantbai, 19 Bom., 832. Where the 
father has appointed a guardian by will, no other guardian can be appointed 
aader Act VIII of 1890, s. 7 (8), until it is established thut the will is invalid. 
Sayad Shahu v. Ba/pija^ 17 Bom., 660. 

(») AUmelatnmal v . ArunacheUamy 3 Mad. H. C, 69 ; Bissanauthv. Doorga- 
period, 2 M. Di^., 49 ; Oourahkoeri v. Qujadhur^ 6 Cal., 219. But she can 
sue on his behalf if the proper guardian refuses to do so, Mokrund Deb ▼. Banse 
Bisaeisnree, S. D. of 1858, 169. 

18 



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2Ti MINORITY AND GUABDIAN8HXP. [CHAP. VI, 

this would not interfere with her right to the custody of 
the child itself (k). The husband, if of full age, is the 
guardian of his wife, and the fact that she has not attained 
puberty is immaterial. The practice that married girls 
should reside with their parents till puberty is a matter 
of special usage which cannot over-ride the husband's 
right unless pleaded and proved (I), The husband's rela- 
tions, if any exist within the degree of a sapinda, are 
the guardians of a minor widow, in preference to her 
father and his relations (w). A mother loses her right 
by a second marriage (n), and a lather loses his right by 
giving his son in adoption (o). And, of course, any 
guardian, however appointed, may be removed for proper 
cause (p). Little is to be found on the subject of 
guardianship in works on Hindu law. The matter is 
principally regulated by statute (q). 
Bight of goMtd' § 212. The right of the guardian to the possession 
•TnSior* ^ of the infant is an absolute right, of which he cannot be 
deprived, even by the desire of the minor himself, except 
upon sufficient grounds. In the case of parents, especially, 

(k) Kooldeep v. Bajbunsee, S. D. of 1H47, 557. 

i I) Akama v. Puttaiya, 8 Mysore, 119. 

(m) Khadiram llookerjee v. Bonwari^ 16 Cal., 684. 

(w) Baee Sheo v. Buitonjte, Morri-, Pt. I, 108. 

\o) Lakahmibai v. Shridar, 3 Doni., 1. 

(p) AUmelammal v. Arunachellam, 3 Mad. H C, 69; Oourmonee v. Bama- 
soondfvee, S. D. of 1B60, i , 532: Skinner v. Ordr, 14 M. I A., 309; 8. C , 10 
B.L.R.,126; S.ClTSuth., 77; iCawa/jt v. B»<frfya, I All., 549; Abaaiv. Dunne, 
1 All., 69b. 

(q) See Ct. of Wards Acts, Bene. Reg. XXVI of 1793, LU of lb03, VI of 1822; 
M:id. Reg. V of 1804 ; Act XX of 1864 ; Bengal Act IV of 1870. Minora not 
under Court of Wards, Acts XL of 1858, IV of 1872. Education and mar- 
riage of minora. Act XXVI of 1864, XXI of 1866, XIV of 1868. Bam Bun$ee 
V. Soobh Koonwaree, 7 Suth., 321 ; 8. C, 3 Wym., 219; 8. C, 2 In. Jur., 198; 
Bamchunder v. Brojonath, 4 Cal., 929. See as to Procedure, Act IX of 1661 ; 
Guardian and Wards Act, XIII of 1874, VIII of 1890. Under Act Vni of 
1890 a guardian cannot be appointed of tiie property of a minor who is a member 
of a jomt Hindu family under Mitakshara law, and who haa no separate 
property. Shamkuar v. Mohanunda, 19 Cal., 801 ; Jhabbu Singh v. Oanga 
Bishen, 17 All., 629; Bandhu Prasad v. Dhiraji, 20 All., 400; Oharib Wlah v. 
XAaiaA,30I. A.,166; 8.C.,25 \ 11, 407. But a guardian of the person of such a 
minor maybe bo appointed. Virupakafuippa v. Nilgangava, 19 Bom. F. B , 809. 
The High Courts still retain the powers confeired upon them by the High Courts 
Act of appointing guardians to the estate or person of infants, and are not limited 
by Act VlII of 1890 in the exercise of those powers : re Jairam Luxmon, 16 
Bom., 684. Where the Law requires the appointment of a guardian under any 
statute, no greater powers can bejexorcised by a guardian ae facto than would 
have been. vested in him by statute, if he had been duly appointed. Abha$$i 
Begam v. Bajroop Koonwar, 4 Cal., 88. 



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PARA. 212.] CUSTODY OP MINOB. W* 

it is obvious that the custody of their child is a matter of 
greater moment to them than the custody of any article 
of property. Cases, however, have frequently occurred in 
the Indian Courts, where the right of a parent to recover 
his child has been contested, on the ground that the parent 
had changed his religion, and was therefore no longer a ChMi«e of ueii- 

. pon by pftMBt 

fit guardian for his child ; or that the child had changed 
its religion, and was no longer willing to live with its 
parent. On the former point it has been decided that the 
fact that a father has changed his religion, whether the 
change be one to Christianity or from Christianity, is 
of itself no reason for depriving him of the custody of his 
children. It would be different, of course, if the change 
were attended with circumstances of immorality, which 
showed that his home was no longer fit for the residence 
of the «hild (r) ; or if he were applying to the Court for 
assistance in regaining possession of a child, whom at 
the time of conversion, he had voluntarily given up to 
his relation for the purpose of being brought up in the 
Hindu religion. The Court would then consider whether 
the granting of his request would be for the benefit of 
the infant (s). The case of a change of religion by the 
mother might, however, be different. The religion of the 
father settles the law which governs himself, his family, 
and his property. ** From the very necessity of the 
case, a child in India, under ordinary circumstances, 
must be presumed to have his father's religion, and his 
corresponding civil and social status ; and it is, therefore, 
ordinarily, and in the absence of controlling circumstances, 
the duty of a guardian to train his infant ward in such 
religion." Therefore, where a change of religion on the 
part of the mother would have the effect of changing 
the religion, and therefore the legal statics of the infant, 
the Court would remove her from her position as guardian. 



(r) B. V. BeMonji, Perry, O. C, 91. 

(f) Miokoond Lai v. Nohodip Ohund&r, 25 Cal., 881. Sach a suit is not barred 
by the provisions of the Guardian and Wards Act, VIII of 1890. Sharif a ▼ 
Mwnekhan, 35 Bom., 574 contra ; Sham Lai r. Bindo, 26 All., 694. 



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876 MINORITY AND GUABDIANSHIP. [cHAP. VI, 

And the asserted wish of the minor, also, to change 
his religion, in conformity with that of the mother, 
would not necessarily alter the case; unless, perhaps, 
where the advanced age of the minor, and the settled 
character of his religious convictions would render it im- 
proper, or impossible, to attempt to restore him to his 
former position {t). The right of a father to direct the 
religion in which his children shall be brought up is so 
inseparable from his character as parent, that he cannot be 
bound by an agreement renouncing the right, even though 
the agreement is made before marriage and was a sine qud 
non to the marriage taking place (w). But where the father 
has allowed his agreement to be acted on during his life, 
and has died without expressing any contrary wish, these 
circumstances will be taken into consideration as showing 
that he had abandoned any desire that his children should 
be brought up in his own religion, especially if it appears 
that it would be for their temporal benefit to continue in 
the religion of their mother (v). 
ChuunB of reii- § 213. The case of a child voluntarily leaving its parents 
has frequently occurred where there has been a conversion 
to Christianity. It seems at one time to have been the 
practice of the Courts of Calcutta and Madras to allow the 
child to exercise his discretion, if, upon a personal exami- 
nation, they were satisfied that his wish was to remain 
away from his parents, and that he was capable of 
exercising an intelligent judgment upon the point. The 
contrary rule was for the first time laid down by the 
Supreme Court of Bombay, when they directed a boy 
of twelve years old to be given back to his father, and 
refused to examine him as to his capacity and knowledge 
of the Christian religion, or as to his wish to remain with 
his Christian i nstructors (w) . This course was approved by 

(t) 8kinn»r'^~drds, 14 M. I. A., 809 ; S. C.^ 10 B. L. R., 125 ; 8. C, 
17 Suth., 77. 



(u) Re Agar EUia, 10 Ch. D , 49. This right of the father continues ia 
England till the child is 21. Re Agar EUis, 24 Ch. D., 817. 
(v) Re Clarke, 21 Ch. D.,817 ; re Violet Nevin, 2 Ch. (1691), 299 ; re McGraih, 



1 Ch. (1898), 148. 
{to) K, V. Ne$biti, Perry, O. C, 108. 



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PABA8. 213 & 214.] CUSTODY OP MINOR. 277 

Mr. Justice Pattesony to whom Sir Erskine Perry referred 
the point (x). That decision was followed in the Supreme 
Court of Madras in 1858, in the case of KiUloor Narrain- 
swamy (y), when Sir Christopher Bawlinson and Sir Adam 
Bittleston decided that a Hindu youth of the age of four- 
teen, who had gone to the Scottish missionaries, should be 
given up to his father, though he had become a convert to 
Christianity, and was most anxious to remain with his 
new protectors. A similar decision was given in Calcutta 
in 18»53, by Sir Mordaunt Wells, where a boy of fifteen 
years and two months had voluntarily gone to reside with 
the missionaries (z). All these cases were lately examined 
and afl&rmed by the Madras High Court, which held that 
under Act IX of 1875 the period of parental control and 
custody lasted until 18 (a). It may also be observed that 
it is a criminal offence under the Indian Penal Code 
to entice from the keeping of its lawful guardian a male 
minor under the age of fourteen, or a female minor under 
the age of sixteen (b), 

§ 214. More recently the Indian Courts, following the Reoentdeoigioiit. 
rules of equity as administered in England, have refused 
to give effect to any inflexible application of paternal 
rights over minor children. The English practice, as 
deduced from recent cases, is laid down as follows in 
Seton on Decrees (c). ** In equity a discretionary power 
has been exercised to control the fathers* or guardians* 
legal rights of custody, where their capricious exercise 
would materially interfere with the happiness and welfare 
of the child, or where such rights have been forfeited by 
misconduct or acquiescence, or where the father has so 
conducted himself, or is placed in such a position as to 

(ar) 16.. p. 109. 

iy) Not reported. I was coansel for the missiomtrios in the case. -J. D. M. 

(z) Re Himnauth Bo$e^ 1 Hyde, 111. 

(a) Beade v. Krithna^ 9 Mad., 391. No agreement by which a parent Bnr- 
renders to another the right to the custody of the child is binding, and in 
this respect the mother of an illegitimate child is in the same position as tl^e 
father of one ihat is legitimate. Beg. v. Bamordo, A. C. (1891), 88b. 

(() I. P. C, § 361, 363. The consent, or wish, of the minor is quite im- 
mnterial Beg. v. Bhungee, 2 Suth. Cr., r> ; Beg. v. Sooku, 7 Snth. Cr., 36 

(c) II, 8H4., Beg. v. OyngalU'l^- B. (1893), 232; re Newton, 1 Ch. (1896), 740 ; 
re A and B, 1 Ch. (1897), 786. 



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3T6 MINOBITT AND GUARDIANSHIP. [CHAP. VI, 

render it not merely better for the children, but essential 
to their welfare in some very serious and important 
respect that their rights should be superseded or interfered 
with.** In the first case, which arose in Bombay, the giri 
was fifteen, of Hindu birth, but had been left by her 
mother for eight years in an American Mission, where she 
had become a Christian, and had been trained up to earn 
her own living as a teacher (d). In the second case, 
the parents who were Chinese had, when about to leave 
Calcutta, handed over their infant daughter to a converted 
Chinaman and his wife to be adopted by them, and 
brought up as a Christian. They returned in a year and 
six months when the child was nine years old, and 
demanded it back again (e). In the third case, also from 
Calcutta, a Hindu father on his conversion to Christianity, 
left his son with its Hindu uncles to be brought up as a 
Hindu. When he tried to regain possession of the child 
it was twelve or thirteen years old, having been apparently 
four or five years in their charge (/). In all these cases 
there had been a voluntary abandonment of parental 
rights. The child had remained long enough in its new 
home to form new habits ; and, from a worldly point of 
view, the child would undoubtedly have suffered by being 
restored to its parent. In the first two cases there were 
strong reasons to suppose that the parent was acting 
entirely with some indirect motives for his own benefit. 
In all, the application was refused on the ground that the 
Court, in the circumstances, was bound to consider what 
was most for the benefit of the minor. In the Bombay 
case Bayley, J., seemed to think that a boy at 14 or a girl 
at 16 was old enough to choose its own residence. There 
is nothing in any of these decisions to countenance the 
idea that a minor under this age could voluntarily leave or 
could be taken away from a parent who, however mean 
his position, was honestly endeavouring to perform his 
duties to his child, or that the fact that he had changed 

{d) Re Saithri, 16 Bom., 807. («) Re Joshu A8$am, 213 Cal., 390. 

(/) Mokoond Lai v. Nobodip Chunder, 26 Cal., 881. 



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PARA. 215.] OX78TODY OF MINOR. 9S9 

his religion, or that the child wanted to adopt a new 
religion, could be any ground for depriving him of his 
rights over his child. 

§ 215. Exactlv such a case did, however, rise in <>^ of c^ 

* tlAn 00]lT6rt IB 

Mysore, and the decision, though it would certainly not Uywatt. 
be followed in British India, deserves consideration from 
the influence it may exercise in Native States. The facts 
of that case were simple. The suit was brought by a 
father to recover possession of his infant children — one a 
child at the breast, and the other a girl of about two years 
old — who had been carried away from him by their 
mother. He had become a convert to Christianity by 
baptism on the 22nd November, and his wife had deserted 
him, carrying the children with her on the 27th. An 
allegation that she had joined him in his conversion was 
denied by her, and found against as a fact. There is 
nothing in the report to show the social position of the 
parties, or what property, if any, the father, while uncon- 
verted, possessed, or was interested in as a coparcener or 
otherwise. It was held by the Chief Court of Mysore 
{Ramachendra Iyer and Kristna Murti, JJ., Thumboo 
Chetty, C. J., dissenting) that the father was not entitled 
to the custody of his children (g). The legal conditions, 
under which the case was argued, were these : that Act 
XXI of 1850 (Freedom of Heligion) had not been extended 
to Mysore ; that the Native Converts* Marriage Dissolu- 
tion Act, XXI of 1866, had been so extended, and that 
the Government had, by executive proceedings, in a 
case in which Hindus had disputed the right of Native 
Christians to make use of a well, '' affirmed the principle 
that a mere change of religion did not deprive a citizen of 
the civil rights or social status he possessed prior to his 
changing his religion.'* The rule of procedure governing 
the Court was laid down by the 11th section of the Chief 
Court Regulation as follows : — 

" Where in any suit or proceeding it is necessary for the 

ig) Dasapa y. Chikama, 17 Mysore, 324. 



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380 MINORITY AND OUABDIAN8HIP. [CHAP. VI, 

Chief Court to decide any question regarding succession, 
inheritance, marriage, or caste, or any religious usage or 
institution, (a) the Hindu law where the parties are 
Hindus, or (6) any custom if such there be, having the 
force of law and governing the parties or property con- 
cerned, shall form the rule of decision unless such law, 
or custom, has, by legislative enactment, been altered or 
abolished (c). In cases where no specific rule exists, the 
Chief Court shall act according to justice, equity, and 
good conscience.*' 

Kristna Murti, J., who pronounced the leading judg- 
ment, admitted that the case must be governed by the 
last rule. .The ratio decidendi of his judgment will be 
found in the following passages : — " The rules of other 
systems of jurisprudence that a child belongs to his father, 
and that he should be educated and brought up in the 
religion of the father, do not seem to apply where the 
father has done something which the law declares shall 
sever him from all existing ties" (p. 342). "A Hindu 
son owes as much to his grandfather and great-grand- 
father in his observance of ancestral rites as to his own 
father. According to accepted Hindu notions, a father 
is one of the three fore-fathers or ascendants in one group, 
and all the three are equally interested in the religion of 
the son. We are now dealing with Hindu children, and 
as applied to them the rule that their religion should be 
that of their father must be read in an extended sense, so 
as to include the religion of all three of their ascendants. 
The father has no right by his act of conversion alone to 
do anything derogatory of his son's usefulness to his 
grandfather and great-grandfather *' (p. 346). ** Whatever 
we may do, we ought not to place them in a manifest 
disadvantage. The rule of the father's religion must be 
construed so as to mean his religion before conversion, or 
that of the infant's grandfather and great-grandfather. 
The father's right to the custody of his child ought not 
to entail upon the infant any sacrifice, social, religious or 



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PARA. 216.] CUSTODY OP MINOR. 281 

temporal, and no father has a right to change the position 
of an infant to his prejudice after his birth by anything he 
may do" (p. 348). Another argument was derived from 
the provisions of Act XXI of 1866, ss. 27, 28, and from the 
fact that the mother would necessarily be deprived of the 
society of her children, which it was said was contrary 
to the principles laid down by Sir James Hannen in 
D' Alton V. D* Alton (h). '* With regard to the rights of the 
petitioner the principle which guides the Court is, that 
the innocent party shall suffer as little as possible from ' 
the dissolution of the marriage, and be preserved as far as 
the Court can do so, in the same position in which she 
was while the marriage continued — first by giving her 
a sufficient pecuniary allowance for her support, and, 
secondly f by providing that she should not be deprived of the 
society of her children unnecessarily." Sir R. J. Phillimore 
thought " that the first duty of the Court is to consider 
what is for the benefit of the children " (pp. 349 — 351). 

§ 216. It may be doubted whether this argument, Discusgion of 
however plausible and ingenious, is satisfactory. It is °*^* 
quite clear that apostasy from Hinduism operates as a 
complete severance of the offender from the Hindu com- 
munity and destroys all legal rights which he may possess 
under Hindu law. He could not sue for an inheritance 
or a partition, and it may be that, if he held property 
as member of a joint family, his coparceners might bfe 
able to oust him from a joint interest which Hindu law 
would no longer recognise. But though apostasy may 
make a man an outcaste, it does not make him an outlaw. 
When Hindu law has done its worst, he may still appeal 
to the rules of justice, equity, and good conscience. It 
cannot be suggested that anyone can plunder his house, 
or expel him from his land. It probably would not be 
asserted that anyone who met his child out of doors 
could take possession of it, and hold it in defiance of 

him. The Court does not rest its judgment on anything 
_______ ___^__ 



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?M MINOpiTY AND GUABDIANSHIP. [CHAP. VJ^ 

leBs than high views of equity. The first is, that the 
father will be depriving his own ancestors of the religioiis 
advantages which they may procure hereafter from the 
ceremonial services of his own children. If he may 
lawfully deprive them of his own services, it seems difficult 
to see why he may not also deprive them of the rather 
less effective sei-vices of his children. But no Court of 
Equity, such as those to which the learned judge appeals, 
would ever think of curtailing an admitted legal right, 
because its lawful exercise might trench on the happiness 
of ancestors who had passed, or when they passed, into 
another world. As regards the children, the rule asserted 
that ** no father has a right to change the position of an 
infant to his prejudice after his birth by anything he 
may do ** is too wide. It must at once be limited to 
acts of an unlawful and immoral or inequitable character. 
Suppose a father gives up an estate to which he discovers 
that he has no legal title, or resigns a lucrative office 
to become a Missionary in China, would any Court 
take his children from him ? When it is said that the 
father's right of custody ought not to entail upon the 
infant any sacrifice, social, religious or temporal, it rests 
on no foundation of fact. It is of course absurd to talk of 
the religious sacrifice of babies, the eldest of whom was 
not three years old. As to social and temporal sacrifices, 
the learned judge seems to forget that the very act, 
which exiled the plaintiff from the Hindu community, 
introduced him to another, where his act was looked 
upon as meritorious and laudable. It is singular that, 
in using this argument, it did not occur to him that the 
Chief Justice, who presided at the hearing, was himself 
a Native Christian, whose change of religion had not 
prevented him reaching the highest offices in a Native 
State. As regards the rights of the wife, the answer is 
equally obvious. The judgment quoted referred to the 
case of a wife who, by the illegal and immoral acts of her 
husband, was compelled to break off all intercourse with 
him. It can have no application to the case of a wife, 



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PARAS. 217 & 218.] MINOR BOUND BY AC5TS OP OTHERS. 388- 

who, in her own interests, abandons her husband for a 
line of conduct on his part which the Court is not allowed 
to consider as either illegal or immoral. The Act XXI of 
1866 recognises the fact that no wife, who does not share 
her husband's convictions, ought to be forced to share the 
fate of an outcast which he has conscientiously accepted. 
The act is framed for her benefit, but it contains nothing 
to show that, if she elects to deprive him of her own 
society, she has also a right to deprive him of the society 
of his children. 

§ 217. The mother is the natural guardian of an iiie«tim4t&^ 
illegitimate child. But where she has allowed the child to 
be separated from her and brought up by the father, or by 
persons appointed by him, the Court will not allow her 
to enforce her rights. Especially if the result would be 
disadvantageous to the child by depriving it of the 
advantages of a higher mode of life and education (i). 
Her own continued immorality would of itself be a 
sufficient reason against handing over to her a child 
which was otherwise properly provided for (k). 

§ 218. The Contractual acts of a minor are governed Effect of co«. 
by the provisions of the Indian Contract Act IX of 1872, 
but until very recently that Act has been interpreted by 
the Courts in India as if it had not altered the doctrines 
of the Common law. In 1902, however, the question was 
fully discussed by the Judicial Committee, and it was 
held that upon the true meaning of ss. 2, 10 and 11 of that 
Act the contract of a minor was absolutely void and not 
merely voidable, and that even if he had been supplied 
with necessaries suited to his condition in life no remedy 
could be obtained against himself personally, though 
under s. 68 the person who supplied the articles would be 
entitled to be reimbursed from his property (l). Under 
s. 183 no minor can employ an agent, but a person upon 

(f) Ex parte lutiazzoon NUsa Begam^ 2 N. C, 271 ; R. v. Fletcher, Perry, 
O. C, 109; Mittihhayiv. Kottekarati,yieidi.l>ec. of 1860, 154; Lai Das v. 
NekunjOj 4 Cal., 374 ; Kariyadwn Pokkar v. Kayat Beeran, 19 Mad., 461 . 

(k) yenkamma v. Saviiramma^ 12 Mad., 67. 

{I) Mohori Bihee v. Dhurmodas, 30 I. A., 114 ; S. C, 30 Cal., 539. 



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384 MINORITY AND GUARDIANSHIP. [cHAP. VI, 

whom the law confers an authority to act as his agent can 
bind the minor, so long as he only exercises the authority 
for the purposes for which it is conferred. Hence 
contracts for such purposes will bind him when made 
by his guardian, though his name is not mentioned (w). 
He will also be bound by the act of his guardian, in the 
Power of management of his estate, when bona fide and for his 

'^faat *° interest, and when it is such as the infant might reasonably 
and prudently have done for himself, if he had been of 
full age (n). But not where the act appears not to have 
been for his benefit (o) and the person who so deals with 
the guardian is bound to enquire into the property of his 
act (p). And where the act is done by a person who is 

{m) Ranmal Sinji v. VadUcd, 20Bom.» 61, p. 70; Murari v. Tayana^ 70 
Bom., 286, contra if not necessary or manifestly beneficial. Sundararaja v. 
Pattanathuaanii, 17 Mad., 306. 

(n) Cauminany v. Perumma, Mad. Dec. of 1885, 99 ; Temmakal v. Subbam- 
nuU, 2 Mad. H. C, 47; Manishankar v. Bai Muli, 12 Bom., 666 ; Nathuram v. 
Shoma Chhagan, 14 Bom., 662 ; Kumuroodd^en v. Shaikh BhadoOt II Suth., 
184 ; Makbul v. SHmaii Maimad, 3 B. L. R. (A. C. J.), 64 ; S. C, 11 Snth.. 396; 
Ooorooperaad v. Mudduvy S. D. of 1856, 980 ; Soonder Narain v. Bennud Ram, 
4 Cal., 76 ; Boshan Singh v. Har Kishan, 3 All., 535 ; Sikher Chund v. Dul- 
putty, 6 Cal., 363 ; Nirvanaya v. Nirvanaya, 9 Bom. , 366. See as to a guardian's 
power of leasing, Nubokishen v. Kaleepersad, S. D. of 1859, 607 ; Gopeenoth v. 
MamjeewuHf i6., 913; Beebee Sowlutooniaa v. Bobt. Savi, ib., 1576; Subra- 
ma^nta Ayyar v. Arumuga Chettu, 26 Mad., 330. See also as to contracts re- 
quiring statutory sanction, Debi Dutt v. Subodra, 2 Cal., 283. Manji Bam t. 
Tara Singh, 3 All., 852; Doorga Persad v, Keaho Period, 9 I. A., 27 ; S. C, 8 
Cal., 666 ; Bai Balkriahna r. Mt. Ma9u?na Bibi, 9 1. A., 1S2 ; S. C, 6 All., 142; 
Dunput Singh v. Shoobudra, 8 Cal., 620; Harendra Narain v. Moran, 16 Cal., 
40 ; nhupendro Narayan v. Nemye Chand, 15 Cal., 627 ; Girraj Baksh v. Rati 
Hamid, 9 All., 340, as to dealings with the property of a minor by a guardian 
wiohout sanction of Court, Act VIII of 1890, s. 29, Lata Hurro v. Basarutk, 
26 Cal., 909 ; Dattarom v. Gungaram, 23 Bom., 287 ; Tejpal v. Gangm, 25 All., 
69 ; Gharib Ullah v. Khalak, 30 I. A., 165 ; 8. C, 25 All., 407. as to the power of 
a guardian when carrying on an ancestral trading establishment, Bampertab v. 
Foolibai, 20 Bom., 767, p. 777. Documents executed by a Hindu widow who 
described herself as '* mother of A, minor," were held in the absence of evidence 
to the contrai-y, to be executed by her in her capacity as (guardian of the infant, 
Watson V. Sham Lai Mitter, 14 I. A., 173; S. C, 15 Cal., 8. As to the power of 
the committee of a Innatic, see Abilakh Bhagut v. Bhekhi Mahto,^ Cal., 864 ; 
Anpumnbai r. Durgapa, 20 Bom., 150. 

(o) Sambasivien v Kristnien, M&d. Dec. of 1868, 252; Nawab Syud Athru- 
fooddeen v. Mt Sftama Soonderee, S. D. of 1^53, 581 ; Nubokiahen v. Kaleeper- 
tad, S. D. of 1859, 607 ; Lalla Bunseedhur v. Koovwar Bindeaeree, 10 M. I. A., 
464 ; Sonuv. Dhondu, 28 Bom., 330 ; Mahomed v. Sakatwat,mi. A., 190 ; 8. C, 
23 AH., 394. See as to suits for specific performance by or against an infant, on 
contracts entered into by guardian Fatimn Bibi v. Debnauth Shah, 20 Cal., 
608; Jugulkiahori v. Ananda La!, 22 Cal., 545; Krishna^ami \ . Siindarap- 
pay ah, 18 Mad., 416. 

(^) DaXibai y. Gopebai, 26 Bom., 433. See as to carrying out, after the removal 
of a personal disability, a contract which was agreed upon while the disabihty 
lasted, Gregaon v. Aditya Deb, 16 I. A., 221 ; S. C, 17 Cal , 223. Where it 
is open to a minor to repudiate a contract after attaining majority, the vepudia* 



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PARA. 218.] MINOR BOUND BY ACTS OF OTHERS. 285 

not his guardian, but who is the manager of the estate in 

which he has an interest, he will equally be bound, if 

under the circumstances the step taken was necessary, 

proper, or prudent (q). It has been held that a guardian 

has authority to pay a debt barred by the statute, if uj^^t*^^ 

really due (r). A widow certainly may, but that is on 

accoimt of her religious duty to satisfy her husband's 

debts {post § 634). It has been held that an ordinary 

manager of a Hindu family cannot, as such, and without 

special authority, revive by acknowledgment a debt that 

is already time-barred {$). A fortiori, it would appear 

that he could not pay it, and the guardian, who is a 

mere trustee, can still less do so. In the same case it 

was held that a manager had the same authority to 

acknowledge an existing debt that he had to create 

debts. This doctrine was extended by the Madras Court 

to the case of the guardian of a minor (t) ; but in this 

respect the Calcutta High Court disagreed on the ground 

that the guardian of a minor cannot be considered his 

agent within the meaning of s. 19 of the Limitation 

Act (u). The Bombay High Court for some time took the 

same view, but subsequently on reference to the Full 

Bench, held that the guardian of a minor, acting properly 

for his benefit, was his agent within the meaning of the 

statute (v). 



iion mast be made within a reasonable time after his coming of age. Carter 
V. SiUer, 2 Oh. (1892), 278 ; afd. A. C. (1893), 360 ; re Jcmes, 23 Ch. (1893), 461. 
A ratification will be of no effect, if the property has already passed away from 
the person who ratifies the transaction, Lallah Bawuth v. Chandee^ S. D. of 
1868, 812. 

(q) Hunoomanpersaud v. Mt. Babooee, 6 M. I. A., 893 ; Mohanund Mondul 
T. Nafur Mondul, 26 Cal., 820; Balaji Narayen v. Nafui, 27 Bom., 287. So 
held also in a case where the joint member was a lunatic, and the manager had 
no certificate under Act XXXV of 1858, Karti Chvnder v. BisKeshwar 
Qaswamif 25 Cal. F. B., 585. As to the acts of a de facto guardian, see 
Majidan v. Bau Narain, 26 All., 22. 

(r) Choudhry Chuttersal v. Government ^ 3 Suth., 57. 

(f) Chinnaya v. Qurunathan, 6 Mad. F. B., 169 ; Bhasker Taiya v. VijaXal 
Nathu, 17 Bom., 512. 

(t) Sobhanadri v. SriramulUj 37 Mad., 221 ; follcl. Subramania Ayyar v. 
Arumuga Ohetty, 26 Mad., 830. 

(tt) Wajibun v. Kaden Buksk, 18 Cal., 292. 

(v) Bammal Singji v. Vadilal^ 20 Bom., 61, p. 74; Annapagauda v. Keru^ 
96 Bom., 221. 



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iS86 MINORITY AND GUARDIANSHIP. [CHAP. VI, 

Oannotbind § 219. In all cases the power of the guardian or 

^^ntSij. manager is limited to the disposal of the estate with 
which he is entrusted. He cannot bind the minor by any 
purely personal covenant. For instance, a guardian in 
order to pay oflf a charge upon the estate sold part of it, 
and was held to have acted properly in so doing. The 
part was sold as free of all Government claim for revenue, 
and naturally fetched a higher price on that account. 
The conveyance contained a covenant binding the minor 
and his heirs to indemnify the purchaser against any 
claims for revenue which the Government might make at 
any future time, and provided that the amount of such 
indemnity should be a charge upon the unsold portion of 
the estate, and should also be payable personally by the 
vendor and his heirs. After the termination of the 
minority Government assessed the land, and an action 
was brought upon the covenant by the purchaser. The 
Privy Council held that the personal covenant was not 
binding on the minor after he attained majority, such 
a covenant being beyond the guardian's powers. They 
thought that possibly it might bind the land, as the result 
of the covenant was to save part of the land which would 
otherwise have to be sold. It was unnecessary to decide 
this point, as under a special statute the land was made 
free from incumbrance (w). The following case was 
decided on the same principle : The suit was founded 
upon an alleged agreement by one Durga Pershad to 
maintain, educate and bring up one Bamanuj Dyal, son 
of Ganga Saran, and to constitute him his heir. Before 
the alleged agreement Durga Pershad had kept Bamanuj 
Dyal, who was his sister's son, in his house, and had 
formed a strong attachment to him. The agreement was 
made to induce Ganga Saran to give up his intention of 
taking the boy, and educating him in his own way. The 
father yielded. " I finally left the boy, saying that I 
waived all claim to the boy, and the thought of taking 

iw) Waghela Baj SanH v. Shskh Mculudin, 14 I. A., 89 ; S. C, 11 Bom., 561 ; 
Banmalaingji v. VadiUu, 20 Bom., 61. 



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PABA. 219.] MINOR BOUND BY ACTS OP OTHERS. 887 

him did not remain in my mind." No deed or will was 
executed by Durga Pershad, and on his death the property 
was taken by his widows, as heirs. The Judicial Com- 
mittee held that there was no contract or agreement, 
only an expectation on each side. Ganga Saran could 
only bind Bamanuj during his minority and it was 
improbable that Durga could have entered into an absolute 
agreement to make Ramanuj his heir, when the latter was 
under no obligation to remain with him after attaining 
majority (x). 

Where the act is done by a person in possession of 
property, who does not profess to be acting on behalf of 
the minor, but who claims to be independent owner, and to 
be acting on his own behalf, it will not bind the infant 
who is really entitled (y) . 

Of course the objection to an acton the groucd of 
minority must be taken by the minor himself. Those who 
deal with him are always bound, though he may not be (z). 

Where a minor on coming of age sues to set a sale or Equities on 
mortgage aside, he is bound to refund the purchase money, 
when his estate has benefited by it, or to hold the property 
charged with the amount of debt from which it has been 
freed by the sale (a). But the authorities cited in this 
and the preceding paragraph must now be limited to cases 
where the contract was made by some one who was prima 
facie entitled to bind the minor. Where the contract 
relied on has been made by the minor himself it is void ab 
initio, {ante § 218) and therefore can form no consideration 
which would render the agreement binding on the other 
party. Nor can it raise any equities against the minor. 

ix) Lala NarcUn v. Lala Bamanuj, 26 I. A , 46 ; S. C, 20 All., 209. 

ly) B(ihur AH v. Sookeea, 13 Suth., 68 ; Gadgeppa v. Apaji, 8 Bom., 287 ; 
Inderckunder Singh v. Badhahishore, 19 I. A., 90 ; S. C, 19 Cal., 507. 

(r) Canaka v. Uottavappah, Mad. Dec. of 1855, 184 ; Hanmant Lahahman 
T. Jayarao, 12 Bom., 60 ; Mahamed Arif i. Saraswati Debya, 18 Cal., 259. 

(a) Buk8huny,Doolhin, 12 3ata., 387 ; S. C.,3 B. L. R. (A. C. J. ),423; Par«« 
Chandra v. Karunamayi, 7 B. L. R, 90; 8. C, 16 Suth., 268 ; Bai Kesar v. Bat 
Oanga, 8 Bom. H. C. (A. C J.), 81 ; MWga Pana v. Saiad Sadiky 7 N.-W. P., 
201 ; Kuvarji r. Mot% Haridaa, 3 Bom., 234 ; Sivaya Pillai v. Munisamit 22 
Mad., 289. 



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288 MINORITY AND GUARDIANSHIP. [cHAP. VI^ 

As Bomer, L. J., said in a case which was affirmed by the 
House of Lords, ** The short answer is that a Couii; of 
Equity cannot say that it is equitable to compel a person 
to pay any moneys in respect of a transaction which, as 
against that person, the Legislature has declared to be 
void" (6). 
False statanent § 220. Another question, which upon ihe Indian deci- 

Dyiiiiiiora4Bloni8 . . 

««e. sions is left uncertain, is this. Whether a minor, who has 

induced another to contract with him by a fraudulently 
false representation that he was of full age, can set up his 
actual minority when he is sued upon, or tries to repudiate 
the transaction. In the first case (c) the minor had 
borrowed money from the plaintiff and executed a mortgage 
to him. At the trial of the suit, which was for the usual 
mortgage decree and for a money decree, the plaintiff's 
counsel admitted that he could not obtain a mortgage 
decree, but that on proof of the false representation he was 
entitled to a money decree. The High Court held that 
the infant might be compelled to make restitution, where 
that was possible, of anything he had obtained by deceit, 
but that the deceit itself could not make the contract an 
effectual ground of suit. The second case (d) was exactly 
similar, except that the suit was expressly to enforce the 
mortgage by decree. Jenkins, J., distinguished the case 
from that last cited on the ground that there only a money 
decree was sought. He treated the admission as one that 
ought never to have been made, and then cited a series 
of decisions from Lord Cowper to the present day, to show 
that infancy cannot in equity be used as a defence to fraud, 
where the suit is for foreclosure or sale by virtue of a 
mortgage. This decision was brought before the High 
Court on appeal and was confirmed. The decision in 
Dhanmull v. Ramchunder was treated as doubtful, the 
Court intimating that, if the plaintiff had objected to the 

(6) Thurstan v. Nottingham Building Society (1932), 1 Ch., p. 18, «/<{. (1908) 
A. C. 6, folld. Mohori Btbee v. Dhurmodas, 80 1. A., p. 126. 
{c) Dhanmull v. Bamehvnder Ghose^ 24 Cal., 266. 
[d) Saral Ohund Mitter v. Mohun Bibi, 26 Cal., 871. 



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PARAS. 220 & 221.] MINOR BOUND BY ACTS OP OTHERS. 

fact that no money decree had been granted, they would 
have referred the question to a Pull Bench. Both cases 
were argued upon English decisions, it being admitted that 
they were binding upon the point. In the last case (e) the 
plaintiff sued to set aside a deed of sale which he had 
executed while a minor, and which contained a recital that 
he was 22 years of age. The High Court of Bombay dis- 
missed the suit, not on the grounds discussed in the 
Calcutta decision, but upon the principle that, under 
s. 115 of the Evidence Act, he was estopped from contra- 
vening the assertion of fact upon which he had induced 
the defendant to act. In Mohori Bibee's case the same 
ground of estoppel was relied on as against the minor who 
had expressly alleged in writing that he was a major. The 
Judicial Committee declined to say whether the section 
would apply to infants, but held that in the particular 
instance it could not prevail, as the person to whom the 
statement was addressed knew the truth, and was not 
misled by it (/). 

§ 221. A minor, who is properly represented in a suit, Decroei. 
will be bound by its result, whether that result is arrived 
at by hostile decree, or by compromise or by withdrawal (g). 
But the Court will not make a decree by consent without 
ascertaining whether it is for the beneiSt of the infant. 
Without such approval by the Court, the compromise will 
not bind the infant, and the decree passed in accordance 
therewith will be set aside at his instance (A). It is 

(e) Ganeah Lola v. Bapu, 21 Bom., 198. (/) 30 I. A., p. 122. 

ig) Kamaraju v. Secretary of State, 11 Marl., 309 ; Chengal Beddi v. Venkata 
Beddi, 12 Mad., 483; Tarinee Chum v. TTateow, 12 8uth., 414 ; 8.C.,8B. L.R, 
(A. C. J.), 437 ; Modhoo Soodun v. Prithee Bullub, 16 Suth., 231 ; Jungee LaXl 
▼. Sham LaU, 20 Soth., 20; Lekraj v. Mahtab, 14 M. I. A., 398 ; S. C, 10 
B. L. R., 36 ; 8. C, 17 Suth., 117; Mrinamoyi v. Jogo DUhuri, 6 Cal., 460. Ab 
to mode of re-opening soch a compromise, see Virupakahappa v. Shidappa^ 23 
Bom., 690. And the guardian may equally compromise claims before nuit ; 
Gopeenath v. Bamjeewun^ 8. D. of 1869, 913, or sue for part only relinquishing 
the rest, Oopal Bao v. NaraHnga, 22 Mad., 308. As to efifect of withdrawal of 
suit, Eahan Ohunder v. Nundamoniy 10 Cal., 367. 

Ch) Bam Chum v. Munafil, 16 Suth., 282, Civil Procedure Code, Act XIV of 
1882, § 462 ; Bajagopal v. Muttupalem, 8 Mad., 103 ; Karmali v. Bahimhhoy, 18 
Bom., 187 ; Kalavati v. Chedi Lai, 17 All., 631 ; Banga Bao v. Bajagopala, 
92 Mad., 878 ; Virupakahapa v. Shidapa, 26 Bom., 109. Where, however, the 
decree on the compromise h^ become a final decree, the Court refused to enter- 

19 



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*<M0 MINORITY AND GUARDIANSHIP. [OHAP. VI, 

necessary that one who rests his case on a decree made 
by consent against an infant should show that the consent 
was given by somebody having authority to bind the 
infant ; and even then the consent will not be binding, if it 
was given in reliance upon the false statements of a person 
who had an interest opposed to that of the infant (i). 
Where a decree binding on a minor has once been 
obtained, the creditor will not be deprived of the benefit 
of his decree, because he has by mistake taken out execu- 
tion against the guardian by name instead of against the 
minor as represented by the guardian (A;). And the mere 
fact that a proceeding was partly conducted through the 
intervention of a Civil Court — as for instance, a decree on 
a foreclosure — does not give it any additional validity 
against a minor, unless he is properly made a party to the 
proceeding at a stage when he can question it on its 
merits {I). Of course a compromise or a decree can 
always be set aside if obtained by fraud (m). Cases might 
also arise in which a guardian, by mere carelessness, 
amounting to gross neglect of duty, but without fraud, 
failed properly to support the interests of his ward, and 
thereby failed in a suit which he ought to have won. 
Where such negligence amounts to actual misconduct, the 
decree will not be held binding upon the infant, and may 
be set aside by suit (n). 

The natural father of an adopted son is not his guardian. 



tain a salt by the infant on attaining majority to set it aside, Aman Singh ▼. 
Narain Singh^ 20 Al!., 98. The proper course is to lyply by way of review to 
reverse the decree. Bakhal v. Aawytaj 36 Cal., ol8. As to reference to 
arbitration and award, where infant is concerned, see BoTttan Kisaen Sett v. 
Hurro Lai, 19 Cal., 334. 

{%) Muhammad Mumtaz v Sheo Battangir, 28 1. A., 6 ; S. C, 28 Cal., 934 ; 
Bam Autar v. Baja Muhammad Mumtas, 24 I. A., 107 ; S. C, 24 Cal., 803. 

(Af) Rari v. Narayan, 12 Bom., 427. 

(I) Buzrung v. Mt. Mautora, 22 Suth., 119. 

(m) Lekraj v. Mahtab, 14 M. I. A.. 893; S. C, 10 B. L. R., 86 ; S. C, 17 Suih., 
117; Bibee Solomon v. Abdul AgeeM, 6 Cal., 687; Eahan Chunder v. Nunda- 
moni, 10 Cal., 367 ; Baahubar Dyal v. Bhikya LaU, 12 Cal., 69. 

(n) Mungniram v. Mohimt Qur$ahai^ 16 I. A., p. 204 ; S. C, 17 Cal., p. 861 ; 
LaXla Sheo Ohurny. Bamnandan^ 22 Cal. , 8 ; Cunandaa v. Ladikavahu, 19 Bom., 
671 ; Qopal Bao v. Narasmga^ 22 Mad., 806, per Lord Watson, BamAutar t. 
Baja Muhammad MumtoM, 24 I. A., 107, p. 114 ; S. C, 24 Cal., p. 861, of by 
review Bam 8aru/p LaX v. Shah Latafat^ 29 Cal., 786. 



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PARA. 221.] MINOR BOUND BY ACTS OF OTHERS. 291 

unless specially so appointed, so as to bind him by his 
conduct of a suit in his behalf (o). And although the 
minor may properly be represented by the manager of the 
undivided family, the mere fact that the suit is conducted 
or defended by the manager is not in itself sufficient to 
show that the minor is adequately represented (p). If, 
however, the Court has in fact given permission to any one 
to represent the minor, his acts will not be invalid for 
want of a certificate under Act XL of 1858, though the 
absence of such certificate may, if not rebutted, be 
evidence that there never has been such a permission (g). 
A mere want of form in the mode of describing the minors 
will not affect the validity of the decree, if they have been 
really represented and sued (r). 

A decree in a suit in which a minor is properly repre- 
sented may be liable to set aside for fraud or other 
reasons, but till set aside it binds him, and proceedings to 
get rid of it must be commenced within a year from 
the date of the decree or from the termination of the 
minority (s). Where the minor has not been properly 
represented the decree is a nullity, as far as he is concerned, 
even without any allegation of fraud (t). He need take no 
notice of it, and may proceed to enforce his rights within 
the period of limitation which would be applicable if no 
decree had been passed (u). 

(o\ Srinarain Mitter v. Breemutty Kishen, 11 B. L. R., 171 (P. C). 

Ip) Fadmakar Vinayek v. Mahadev Krishna, 10 Bom., 21. Doubting Oan 
Savant v. Narayen Dhond, 7 Bom., 467; Viahnu Keahav v. Bamehandrat 11 
Bom., 130. 

(a) Jogi Singh t. Behari Singh, 11 Cal., 509 ; Alim Buksh v. JTuUo Bibi, 12 
CaL, 48 ; Durgoperahad v Keaho Perahad, 9 1. A., 27 ; S. C, 8 Cal., 666 ; Sureah 
Ohunder ▼. Jugat ChiMder, 14 Cal., 204 ; Parmeahar Daa v. Bela, 9 All., 508 ; 
Bibi Walian v. Banke Behari, 80 I. A., 182 ; S. C, bO Col.. 1021. As to suits 
brought on behalf of a minor without the sanction of the Court of Wards, see 
Dineah Chunder v. Oolam Moatapha, 16 Cal., 89. 

(r) Jogi Singh, Behari Singh ub aup., Bhaba Perahad v. Secretary of State, 
14 Cal., 169 ; Sureah Chunder v. Jugat Chunder, 14 Cal., 204; Nateavayyan v. 
Naraaimmayyar, 18 Mad., 480 ; Hari Saran Moitra v. Bhubaneawari Debi, 15 
I. A., 196; S.C, 16 Cal., 40. 

(a) Act XV of 1877, Sched. II, Art. 12. Mungniram Marwari y. Mohunt 
Ouraahai, 16 1. A., 206 ; S. C. , 17 Cal., 847. As to the mode of setting aside such 
a decree, see MiruU BahimbJioy v. Behmoobhoy, 16 Bom., 694. 

(t) Sham Lai t. Ghaaita, 28 AU., 469. 

(tf) Daji Himai t. Dhirajram, 12 Bom., 18. 



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2t2 MINOBITT AND aUABDIANSHIP. [CHAP. VI, PABA. 221.] 

Suite agamsi A guardian is liable to be sued by his ward for damages 

'''*"^*^' arising from his fraudulent or illegal acts (v). For debts 

due by the ward, the guardian of course is only liable to 

the extent of the funds which have reached his hands (w). 

(v) Issur Chwnder t. Bagab, S. D. of 1860, 1, 849 ; Beneal Reg. X of 1798, s. 82. 
(w) Sheikh AMeemooddeen v. Moon^hee Athutf 8 Snth., 187. 



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CHAPTER VII. 



EARLY LAW OP PBOPBRTY. 



§ 222. The student who wishes to understand the Mideading 
Hindu system of property must begin by freeing his anS)gi6e. 
mind from all previous notions drawn from English law. 
They would not only be useless, but misleading. In 
England ownership, as a rule, is single, independent, and 
unrestricted. It may be joint, but the presumption will 
be to the contrary. It may be restricted, but only in 
special instances, and under special provisions. In India, 
on the contrary, joint ownership is the rule, and will be 
presumed to exist in each individual case until the con- 
trary is proved. If an individual holds property in 
severalty, it will, in the next generation, relapse into a 
state of joint tenancy. Absolute, unrestricted ownership, 
such as enables the owner to do anything he likes with 
his property, is the exception. The father is restrained 
by his sons, the brother by his brothers, the woman by 
her successors. If property is free in the hands of its 
acquirer, it will resume its fetters in the hands of his 
heirs. Individual property is the rule in the West. 
Corporate property is the rule in the East. And yet, 
although the difference between the two systems can now 
only be expressed in terms of direct antithesis, it is 
pretty certain that both had a common origin (a). But 
in India the past and the present are continuous. In 
England they are separated by a wide gulf. Of the bridge 
by which they were formerly connected, a few planks, 
only visible to the eye of the antiquarian, are all that now 
remain. 

§ 223. Three forms of the corporate system of property Different forms 
exist in India: the Patriarchal Family, the Joint Family ^j^°~** p~- 
and the Village Community. The two former, in one 

(a) See Maine, Village Commanities, 82. 



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294 BARLT LAW OF PROPBBTY. [CHAP. VII, 

shape or other, may be said to prevail throughout the 
length and breadth of India. The last still flourishes in 
the north-west of Hindostan. It is traceable, though 
djring out, in Southern India. It has disappeared, though 
we may be sure it formerly existed, in Bengal and the 
upper part of the peninsula. In some regions, such as 
among the Hill tribes and the Nairs of the Western Coast, 
it appears never to have arisen at all. The analogy 
between the two latter forms is complete. The Village 
Community is a corporate body, of which the members 
are families. The Joint Family is a corporate body, of 
which the members are individuals. The process of 
change which has been undergone both by Village Com- 
munities and Families is similar, and the causes of this 
change are generally identical. It seems a tempting gene- 
ralisation to lay down that one must have sprung from 
the other ; that the Village Community has grown out 
of the extension of the Joint Family, or that the Joint 
Family has resulted from the dissolving of the larger 
body into its component parts. But such a generalisation 
would be unsafe. The same causes have no doubt pro- 
duced the Village system and the Family system. But 
it is certain that there are many Villages which have 
never sprung from the same Family, and many places 
where the Family system has shown no tendency to grow 
into the Village system. 

vaiageoom- § 224. The Village system of India may be studied 

?SnjSr "* ^^ ^*^ ™^^* advantage in the Punjab, as it is there that we 
find it in its most perfect, as well as in its transitional, 
forms (b). It presents three marked phases, which ex- 
actly correspond to the changes in an undivided family. 
The closest form of union is that which is known as the 
Communal Zemindari village. Under this system " the 
land is so held that all the village co-sharers have each 

{h) The results of the latest informatioii upon this suhject will be found 
in two works by Mr. B. H. Baden-Powell upon Indian Village Communities ; 
a large and ezhaustiye volume published in 1896, and a unaller work which 
is a summary of the former dated 1899. 



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PARA. 224.] VILLAGE COMMUNITIES. 296 

their proportionate share in it as common property, with- 
out any possession of, or title to, distinct portions of it ; 
and the measure of each proprietor's interest is his share 
as fixed by the customary law of inheritance. The rents 
paid by the cultivators are thrown into a common 
stock, with all other profits from the village lands, 
and after deduction of the expenses the balance is divided 
among the proprietors according to their shares " (c). Punjab. 
This corresponds to the undivided family in its purest 
state. The second stage is called the pattidari village. 
In it the holdings are all in severalty, and each sharer 
manages his own portion of land. But the extent of the 
share is determined by ancestral right, and is capable of 
being modified from time to time upon this principle (d). 
This corresponds to the state of an undivided family in 
Bengal. The transitional stage between joint holdings 
and holdings in severalty is to be found in the system of 
re-distribution, which is still pra<5tised in the Pathan 
communities of Peshawar. According to that practice, 
the holdings were originally allotted to the individual 
families on the principle of strict equality. But as time 
introduced inequalities with reference to the numbers 
settled on each holding, a periodical transfer and re-distri- 
bution of holdings took place (e). This practice naturally 
dies out as the sense of individual property strengthens, 
and as the habit of dealing with the shares by mortgage 
and sale is introduced. The share of each family then 
becomes its own. The third and final stage is known as 
the bhaichari village. It agrees with the pattidari form, 
inasmuch as each owner holds his share in severalty. 
But it differs from it, inasmuch as the extent of the 
holding is strictly defined by the amount actually held 
in possession. All reference to ancestral right has disap- 
peared, and no change in the number of the co-sharers can 

(c) Punjab Cnstoms, 105, 161. This stage is the same as that described by 
Sir H. S. MiviDe, as existing in Servia and the adjoining districts. Ancient 
Law, 267; see Evans, Bosnia, 44. (<Z) Punjab Customs, 106, 166. 

(tf) Punjab Customs, 126, 170. See Corresponding Customs, Maine, Anc. 
Law, 267 ; Village Communities, 81 ; Lavaleye, eh. vi. ; Wallace, Russia, i., 18^. 



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906 BARLT LAW OP PROPERTY. [CHAP. VII, 

entitle any member to have his share enlarged. His rights 
have become absolute instead of relative, and have ceased 
to be measmred by any reference to the extent of the 
whole village, and the numbers of those by whom it is 
held (/). This is exactly the state of a family after its 
members have come to a partition. 

§ 225. The same causes which have broken up the 
Joint Family of Bengal have led to the disappearance of 
the Village system in that province. In Western and 
Central India, the wars and devastations of Muham- 
medans, Mahrattas, and Pindarries swept away the Village 
institutions, as well as almost every other form of ancient 
S<m«heni India, proprietary right ig). But in Southern India, among the 
Tamil races, we find traces of similar communities (h). 
The Village landholders are there represented by a class 
known as Mirasidars, the extent and nature of whose 
rights are far from being clearly ascertained. It is certain, 
however, that they have a preferential right over other 
inhabitants to be accepted as tenants by the Government, 
a right which they do not even lose by neglecting to avail 
themselves of it at each fresh settlement (i). They are 
jointly entitled to receive certain fees and perquisites 
from the occupying tenants, and to share in the common 
lands {k). Some villages are even at the present time 
held in shares by a body of proprietors who claim to 
represent the original owners, and a practice of exchang- 
ing and re-distributing these shares is known still to exist, 
though it is fast dying out (I). In Madras the Govern- 

(/) Punjab Customs, 106, 161. 

ig) See speech of Sir J. Ijawrence, cited Punjab Customs, 138. 

(h) Elpbiustone, India, 66, 249. 

\i\ Bamanooja v. Peetayen^ Ma<l . Dec. of 1850, 121 ; A lagappa v . Ranuuamy^ 
Mad. Dec. of 1859, 101 ; 5th Report House of Commons, cited MootoovermaU 
V. Tondaven, 1 N. C, 820 [275] . See Fakir Muhammad v. Tirumaia Chariar, 
1 Mad., 205. 



(*) MootoonermaU v. Tondaven, 1 Stra. N.C., 800 [260] ; KoomaraMawmyr, 

lagavaj Mad. Dec. of 1852, 38; Viswanadha v. Moottoo Moodely, Mad. Dec. of 

1854, 141; Muniappa v. Kaaturi, Mad. Dec. of 1862, 50. In the Punjab this 



right may be retained by a co-sharer, though he has ceased to possess any land 
in the village. Punjab Customs, 106. 

il) Madura Manual, Pt. V., 12; VenkatasvatrU v. Suhha Rau, 2 Mad. H. C, 
1, 5; Anandayyan ▼. Devarajayyan^ ih.^ 17 ; Saminathaiyan v. Saminathaiyan^ 
4 Mad. H. C, 159; SitHaraimyar y . Alagiri, 8 Mad. Rev. Reg., 189. 



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PARAS. 225 & 226.] VILLAGE CX)MMnNITIES. 397 

ment claim is made upon each occupant separately, not 
upon the whole village, as in the Punjab ; but the con- 
trary usage must once have existed. Sir G. Campbell 
mentions an instance in which the Government supposed 
that they were receiving their revenue as usual, from the 
individual ryots. It was ascertained that the village had 
really taken the matter into its own hands, and regularly 
re-distributed the burthen according to ancient practice 
among the several occupants (w). 

§ 226. The co-sharers in many of these Village Com- Tnkaiti<m M 
munities are persons who are actually descended from a soent. 
common ancestor. In many other cases they profess a 
common descent, for which there is probably no found- 
ation (n). In some cases it is quite certain there can be 
no common descent, as they are of diflferent castes, or even 
of diflferent religions (o). But it is well known that in 
India the mere fact of association produces a belief in a 
common origin, unless there are circumstances which 
make such an identity plainly impossible. I have often 
heard a witness say of another man that he was his 
relation, and then upon cross-examination explain that he 
was of the same caste. The ideas presented themselves 
to his mind, not as two but as one. An instance is given 
by Sir H. S. Maine, in which some missionaries planted 
in villages converts collected from all sorts of diflferent 
regions. They rapidly adopted the language and habits 
of a brotherhood, and will no doubt before long frame a 
pedigree to account for their juxta-position (p). It is 
evident that an actual community of descent must depend 
upon mere accident. If a family settled in an unoccupied 
district, it might spread out till it formed one community, 
or several Village Communities. The same result might 
happen if a family became suflBciently powerful to turn 

(w) Land Tonures, Cobden Club, 97. 

(») Panjab Castoms, 186, 164; Maine, Vill. Com., 12, 175; Early Instit., 1, 
64 ; Lyall, Asiauc Stadiea, ch. vii. ; Hunter's Orissa, ii., 72 ; McLennan, 214. It 
must be remembered that the co-sharers of a village are a much smaller body 
than the inhabitants. 

(o) Maine, Vill. Com., 176 ; Muniappa v. Katturij Mad. Dec. of 1862, 60. 

(p) Maine, Early Instit., 288. 



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298 



EARLY LAW OF PROPERTY. [cHAP. VII, 



Joint families 
do not alwajB 
enand into 
ViOai^e com* 
mimities. 



Kwidhs. 



out its neighbours, or to reduce them to submission. 
Where the country was more thickly peopled, several 
families would have to unite from the first for mutual 
protection, and would in time begin to account in the 
usual way for the fact that they found themselves united 
in interest. Families which settled, or sprung up, in 
regions that were fully occupied never could form new 
communities based on the possession of land. 

§ 227. As it is certain that Village Communities have 
not always sprung from a single Joint Family, so it is 
equally certain that a Joint Family does not necessarily 
tend to expand into a Village Community. For instance* 
the Nairs, whose domestic system presents the most 
perfect form of the Joint Family now existing, never 
have formed Village Communities. Each tarwad lived 
in its own mansion, nestling among its palm trees, and sur- 
rounded by its rice lands, but apart from, and independent 
of, its neighbours. This arises from the peculiar structure of 
the family, which traces its origin in each generation to 
females, who live on in the same ancestral house, and not 
to males, who would naturally radiate from it, as separate 
but kindred branches of the same tree. In a lesser degree 
the same thing may be said of the Eandhs. Among 
them the Patriarchal Family is found in its sternest type. 
But though the families live together in septs and tribes, 
tracing from a common ancestor, and acknowledging a 
common head, and although their hamlets have a de- 
ceptive similarity to a Hindu village, they want the one 
element of union — there is no unity of authority, and no 
community of rights. Each family holds its property in 
severalty, and never held it in any other way. It is absolute 
owner of the land it occupies ; and it ceases to have any 
interest in the land which it abandons. The chieftain has 
influence, but not authority. The families live in proximity, 
but not in cohesion. They are not branches of one tree, 
but a collection of twigs (9). This, again, seems to arise 

(9) Hnnter's OribBa, ii., 72, 204. 



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PARAS. 227—230.] THE PATRIARCHAL FAMILY. 299' 

from the circumstances of their position. With them 
land is so abundant, and their wants so few, that it has 
never been necessar)' to restrain the individual for the 
benefit of the community. Where the common stock is • 
limited, it is necessary to make rules for its enjoyment ; 
but where all can have as much as they want, no one 
would take the trouble to make rules, and no one would 
submit to them if made. 

§ 228. The same causes which have prevented the Arrested ex- 
Joint Family from extending into the Village Community Ittriarohai 
appear' also to check the Patriarchal Family at the stage ^*™»^y- 
at which it would naturally expand into the Joint Family. 
For instance, among the Eandhs, at the death of the 
father, the family union, which previously was absolute, 
appears to dissolve. The property is divided, and each 
son sets up for himself as a new head of a family (r). 
Among the Hill Tribes of the Nilgiris, and among the 
Kols, the same practice prevails (s). 

§ 229. It would appear, therefore, that in tracing 
society backwards to its cradle, one of the earliest, if not 
the earliest, unit, is the Patriarchal Family. In the 
language of Sir H. S. Maine (t), " Thus all the branches 
of human society may, or may not, have been developed 
from joint families which arose out of an original 
Patriarchal cell ; but, wherever the Joint Family is an 
institution of an Aryan race (m), we see it springing 
from such a cell, and, when it dissolves, we see it dissolving 
into a number of such cells.*' 

§ 230. The Patriarchal Family may be defined as " a its origin and 
group of natural or adoptive descendants, held together 



nature. 



(r) Banter's Orissa, ii., 79. 

{8) Brpeks, Primitive Tribes of the Nilgiris, 9, 39, 42, 68. 

U) Early Institations, 118. I have retained the following pages unaltered, 
notwithstanding the attack lately made upon Sir H. S. Maine's views by 
Mr. McLennan. Patriarchal Theory, 1885. For a reply to that work, so far as 
it affects Hindu Law, see an article by the present autnor in the Law Quarterly 
Review, I, 486. For a genera reply by Sir H. S. Maine, see the London Quar- 
terly Review, Jan. 1886. 

(tt) This qoalification was no doubt intended to exclude cases where the Joint 
Fanuly is of a polyandrous type. 



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800 EARLY LAW OP PBOPBRTY. [OHAP. VII, 

by subjection to the eldest living ascendant, father, grand- 
father, great-grandfather. Whatever be the formal pre- 
scription of the law, the head of such a group is always 
in practice despotic ; and he is the object of a respect, if 
not always of an affection, which is probably seated 
deeper than any positive institution'* (v). The absolute 
authority over his family possessed by the Boman father 
in virtue of this position is well known. A very similar 
authority was once possessed by the Hindu father. Manu 
says : " Three persons, a wife, a son, and a slave are 
declared by law to have in general no wealth exclusively 
their own ; the wealth which they may earn is regularly 
acquired for the man to whom they belong" (w). And 
so Narada says of a son, " he is of age and independent, 
in case his parents be dead ; during their lifetime he is 
dependent, even though he be grown old ** (x). But this 
doctrine was not peculiar to the Aryan races. Among 
the Kandhs it is stated that " in each family the absolute 
authority rests with the house father. Thus, the sons 
have no property during their father's lifetime ; and all 
the male children, with their wives and descendants, 
continue to share the father's meal, prepared by the 
common mother" (y). An indication of a similar usage 
still exists among the Tamil inhabitants of Jaffna, where 
all acquisitions made by the sons while unmarried, except 
mere presents given to them, fall into the common stock(2r) . 
The records of the Pondicherry Courts show that the 
same rule was recognised there in 1788 (a). As soon as 
they are married, it would appear that each becomes the 
head of a new family. 

Origin of Joint § 231. The transition from the Patriarchal to the Joint 
* ^" Family arises (where it does arise) at the death of the 

{o) Early Institations, 116 ; Ancient Law, 183. Here Beems to be the origin 
of the great Hindu canon of inheritance, that the funeral cake stops at the 
third in descent. See post § 515. 

[w) Manu, viii., § 416 ; Narada, v., § 39 ; Sancha & Lich., 2 Dig., 526. 

(x) Narada, iii., S 38. See, too, Sancha & Lich., 2 Dig , 583. 

ly) Hunter's Orissa, ii., 72. («) Thesawalemo, iv., 5. 

(a) Sorg. H. L., 173. 



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PABAS. 231 & 232.] MB. mclbnnan's thbobt. 801 

common ancestor, or head of the house. If the family 
choose to continue united, the eldest son would be the 
natural head (b). But it is evident that his position 
would be very diflferent from that of the deceased Patriarch. Difference 
The former was head of the family by a natural authority, uohai and Joint. 
The latter can only be so by a delegated authority. He is ^*°^y- 
primus but inter pares. Therefore, in the first place, he 
is head by choice, or by natural selection, and not by 
right. The eldest is the most natural, but not the neces- 
sary head, and he may be set aside in favour of one who 
is better suited for the post. Hence Narada says (c) : " Let 
the eldest brother, by consent, support the rest like a father; 
or let a younger brother, who is capable, do so ; the pros- 
perity of the family depends on ability.*' And so the old 
Toda, when asked which of his sons would take his place, 
replied, " the wisest " (c2). In the next place the extent of 
his authority is altered. He is no longer looked upon as 
the owner of the property, but as its manager (e). He 
may be an autocrat as regards his own wife and children, 
but as regards collaterals he is no more than the President 
of a Bepublic. Even as regards his own descendants, it 
is evident that his power will tend gradually to become 
weaker. The property which he manages is property in 
which they have the same interest as the other members 
of the family. The restrictions which fetter him in 
dealings with the property as against collaterals, will, by 
degrees, attach to his dealings with it as against his own 
children. They also will come to look upon him as the 
manager, and not as the father. The apparent conflict 
between many of the texts of Hindu sages as to the 
authority of the father may, perhaps, be traced to this 
source. Those which refer to the father as head of the 
Patriarchal Family will attribute to him higher powers 
than those which refer to him as head of a Joint Family. 
§ 232. We have already seen (/) that the step from Not in i 

(h) Mann, ix., f }06. eequenoe, 

le) Nanda, xiii^ $ 6. (d) Breeks, PrimitiTe Tribes, 9. 

(e) 8te BUiae, B^rly Institotionfl, 116. (/) Ante f 296. 



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802 EARLY LAW OF PROPERTY. [CHAP. VII, 

the Patriarchal to the Joint Family is one which, in some 
states of society, never takes place. Conversely the Joint 
Family is by no means necessarily preceded by the 
Patriarchal Family. For instance, the Nair system ab- 
solutely excludes the Patriarchal idea. Its essence is the 
tracing of kinship through females, and not through males. 
Poiyandrons Mr. McLennan considers that the Nair system was the 

-ongin of family 

rayatem. necessary antecedent of the patriarchal form of relation- 

ship. According to his view^ the loose relation between 
the sexes in early ages first settled into polyandry. Where 
it existed in its rudest shape, in which a woman associated 
with men unrelated to each other, the only family group 
that could be formed would be that of the mother and her 
children, and the children of such of them as were females. 
This is the Nair type, and still exists, at least in theory, 
in the Canarese and Malabar tarwads. Here kinship by 
females was alone possible. When the woman passed 
into the possession of several males of the same family, 
the circle of possible paternity became narrowed. The 
wife then lived in the house of her husbands, and the 
children were born in their home as well as hers. They 
could be identified as the offspring of some one of the 
husbands, though not with certainty as the offspring of 
any particular one. This was the first dawning of kinship 
through males. It is the species of polyandry that exists 
in Thibet, Ceylon, among the Todas on the Nilgiri Hills 
and elsewhere. Where the woman was the wife of several 
brothers, the eldest, to whom she was first married, 
would naturally have a special claim upon her, and could 
be ascertained to be the father of the children who were 
first born. By degrees this special claim would change 
into an exclusive claim, and so a system of absolute 
monandry would arise, and the Patriarchal Family be- 
come possible (g). Substantially the same view is put 

(g) McLennan, Sludiea in Anoient Hiatory. Patriarohal Theory. See fiuiher 
diaouaaion on the same aabjeot m Spencer'a Prinoiplea of Sociology, I, cha{>a. 
iii. — yiii.; Fortnightlr Beview, May and June, 1877; and in Mr. Mozgaa'a 
'* Ancient Sooiet:f," Part HI. Mr. C. Staniland Wake, "The derelopmeni 
•of marriage and kinahip," ohaptera ii., yiii., ix., x. Mr. Edward Weatermarok, 



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PARA. 233.] EVOLUTION OF COMMUNAL RIGHTS. 303 

forward by Dr. Mayr in a less elaborate form (h). Now, 
as the tenure of property always moulds itself to the 
family relations of the persons by whom it is held, the 
result would be that property would first be held by the 
entire tribe ; next by those who claimed relationship to 
a common mother ; and next by a family, tracing either 
from several males, or from a single male. According to 
this theory, the Patriarchal Family would always be 
evolved from a wider Joint Family, instead of the reverse. 

§ 233. It seems to me that the fallacy of these specula- Theoy dis- 
tions consists in assuming that a cause, which is sufficient 
to produce a particular result, is the cause which has 
invariably produced that result. It is certain that 
polyandry, and the female-group system of property, has 
a tendency to change into monandry, and individual 
property. We have seen the process going on among the 
Kandyan chiefs of Ceylon, and the Todas evince the same 
tendency (i). Fidelity to a single husband is becoming 
common among the Nair women of the better class (A:). 
And it is certain that the Malabar tarwads would long 
since have broken up into families, each headed by a male, 
if our Courts had allowed them to do so. It is equally 
certain that the Patriarchal Family is capable of expand- 
ing, and has a tendency to expand into the wider Joint 
Family, for we see instances of it every day. Every 
Hindu who starts with nothing, and makes a self -acquired 
fortune, is a pure and irresponsible patriarch. But we 
know that in a couple of generations his offspring have 
ramified into a Joint Family, exactly, to use Mr. Mc- 
Lennan's simile, like a banian tree which has started with 
a single shoot. It may possibly be that the Village 

'* The History of Human Marriage," chapters iv., v. Marime Kovalevsky, 
"Tableau des Originea et de I'Evolution de la Famille et de la Propriete," 
Lecont i. — v. 

(h) Ind. Erbrecht, pp. 72 — 76. He appears not to have been acquainted with 
Mr. McLennan's work on Primitive Marriage, and bases his theory on the 
cruder speculations of Sir J. Lubbock, as to the early prevalence of what the 
latter tenns '' Communal Marriage." Lubbock, Origin of Civilisation, chap. iii. 

(») McLennan, 196 ; Breeks, Primitive Tribes, 9. Mr. Lewis H. Morgan gives 
numerous instances of the same transition among the American Indian trills. 

(k) Ante f 99. 



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364 EARLY LAW OP PROPERTY. [CHAP. VU, 

Communities and undivided families of Southern India 
have originated among polyandrous tribes, for we have 
evidence of the existence of polyandry among the 
Dravidian and other primitive races (§ 62). But it is 
difficult to attribute to the same cause the existence of 
similar organizations among the Aryan races of Northern 
India. We know that the village and family system in 
these races must be of enormous antiquity, because we 
find an exactly similar system existing among the kindred 
races which branched oflf from them before history 
commenced. It is impossible to say that the ancestors of 
the common race were not polyandrous, but it is almost 
certain that their descendants neither are nor have been 
so during any period known to tradition (§ 63). It is 
difficult therefore to imagine that polyandry could have 
been the necessary antecedent of a system of property, 
which is able to flourish in every part of the world under 
exactly opposite conditions. 

§ 234. The following suggestions seem to me capable 
of accounting for all the known facts, and are equally 
applicable to any families, however formed. 
Tribal nghtB. I assume that an original tribe, finding themselves in 

any tract of country, would consider that tract to be the 
property of the tribe ; that is to say, they would consider 
that the tribe, as a body, had a right to the enjoyment of 
the whole of the tract, in the sense of excluding any 
similar body from a similar enjoyment (l). It would 
never occur to them that any individual member of the 
tribe had a right to exclude any other member per- 
manently from any part of it ; they would hunt over it 
and graze over it in common. When they came to 
cultivate the land, each would cultivate the portion he 
required. The produce would go to support himself and 
his family, but the land would be the common property 
of all. So long as the ratio between population and land 

({^ This is the sort of right wliich the Red Indians are always aaseitinf 
against the Americans. 



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PARA. 234.] RESTRICTIONS ON ALIENATION. 305 

was such as to enable anyone to occupy as much as he 
liked, and when the land was exhausted, to throw it up 
and exhaust another patch, the community would have no 
motive for restraining him in so doing. His rights would 
appear to be unlimited, merely because no one had an 
interest in limiting them. The same cause would produce 
the continual break-up of families. They might cling 
together for mutual protection ; but as soon as each fraction 
grew strong enough to protect itself, it would wander apart 
to seek fresh pasturage for its flocks, or virgin soil for its 
crops (w). This is the condition of the hill tribes of India 
at present. But it would be different when population Growth of 
began to press upon subsistence, either from the increase ^ 
of the original tribe, or from the closing in of adjoining 
tribes. Then the unlimited use of the land by one would 
be a limitation of its use by another. An individual or a 
family might be sufficiently strong to enforce an exclusive 
possession, but everyone could not encroach upon every- 
one else. The community would assert its right to put 
each of its members upon an allowance. That allowance 
would be apportioned on principles of equality, giving 
to each family according to its wants. The mode of 
apportionment might be, either by throwing all the produce private pro- 
into a common stock, and then re-distributing it, as in a ^^^* 
communal Zemindari village ; or by allotting separate 
portions of land to each family, with reference to the 
number of its members, as in a pattidari village. In 
the latter case equality would probably be from time to 
time restored by an exchange and re-distribution of shares, 
as in the Bussian Mir, and the Pathan communities. In 
time this periodical dislocation of society would cease: 
it would tend to die out when the members began to 
improve their own shares. In the Punjab it is found 
that community has died out in spots whose cultivation 
depends entirely upon wells (n). Gradually the shares 
would come to be looked upon as private property. The 

Im) See the separation of Abraham and Lot, in GeuesiB, xiii. 



(n) Punjab GnstomB, 128. 

20 



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806 



EARLY LAW OP PROPERTY. [CHAP. VU, 



PiO|[re88 of the 
familj. 



Early Hindu 
writers. 



LimiUtion of 
family rights. 



idea of community would be limited to a joint interest in 
the village waste, and a joint responsibility for the claims 
of Government. This is the bhaiacharry village. If 
Government chose to settle with each individual instead of 
with the village, the members would be exactly in the 
same position as the Mirasidars of Southern India. 

§ 235. During the whole of this time the family 
system might be going through a series of analogous 
changes. The same causes which led to the compression 
or disruption of the tribe would lead to the compression or 
disruption of the family. The same feeling of common 
ownership which caused the tribe to look upon the whole 
district as their joint property, would cause the family to 
look upon their allotment in the same way. The same 
sense of individual property which led to the break-up of 
the village into shares, would lead to the break-up of 
the family by partition. But as the motives for union 
are stronger in a family than in a village, the union of 
the family would be more durable than that of the village. 
And this, in fact, we find to be the case. 

§ 236. The ancient Hindu writers give us little informa- 
tion as to the earlier stages of the law of property. So 
far as property consisted in land, they found a system 
in force which had probably existed long before their 
ancestors entered the country, and they make little men- 
tion of it, unless upon points as to which they witnessed, 
or were attempting innovations. No allusion to the 
village coparcenary is found in any passage that I have 
met. Manu refers to the common pasturage, and to the 
mode of settling boundary disputes between villages, but 
seems to speak of a state of things when property was 
already held in severalty (o). But we do find scattered 
texts which evidence the continuance of the village system, 
by showing that the rights of a family in their property were 
limited by the rights of others outside the family. For 
instance, as long as the land held by a family was only 

" (o) Mann, riii., { 387—966. JoUy, LeotT^ 



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PARAS. 235 — 237.] RBSTBICTI0N8 ON ALIENATION. 807 

portioned out by the community for their use, it is evident 
that they could not dispose of it to a stranger without the 
consent of the general body. This is probably the real 
import of two anonymous texts cited in the Mitakshara : 
*' Land passes by six formalities ; by consent of townsmen, 
of kinsmen, of neighbours and of heirs, and by gift of 
gold and water." ** In regard to the immovable estate, 
sale is not allowed ; it may be mortgaged by consent of 
parties interested" (p). This would also explain the 
text of Vrihaspati, cited Mitakshara, i., 1, § 30. ** Separated 
kinsmen, as those who are unseparated, are equal in 
respect of immovables, for one has not power over the 
whole, to make a gift, sale or mortgage." It is evident 
that partition would put an end to further rights within 
the family, but would not affect the rights which the 
divided members, in common with the rest of the village 
sharers, might possess as ultimate reversioners. Conse- 
quently they would retain the right to forbid acts by which 
that reversion might be affected. And this is the law in 
the Punjab to the present day (g). Perhaps the text of 
U9anas, who states that land was " indivisible among 
kinsmen even to the thousandth degree" (r), may be 
referred to the same cause. 

§ 237. A further extension of the rights of co-sharers Right of pre- 
took place, when each sub-division was saleable, but the «™p*»<>«»- 
members of the community had a right of pre-emption, 
so as to keep the land within their own body. This right 
exists, and is recognized at present by statute, in the 
Punjab (s). The existence of an exactly similar right 
among the Tamil inhabitants of Northern Ceylon is 
recorded in the Thesawaleme (t), 

(p) Mitakshara, i., 1, § 31, 82 ; see, too, Vivada Chintamani, p. 309. It will be 
observed that here, as in other cases, Vimaneswara gives the texts an expla- 
nation which makes them harmonize with the law as known to him. But it is 
more probable that they were once literal statements of a law which in his 
time luid ceased to exist. See Mayr, 24, 30. 

(q) Punjab Customs, 73. (r) Mitakshara, i., 4, § 26. See Mayr, 31. 

\s) Punjab Customs, 186 ; Act XII of 1878. § 2. 

(t) Thesawaleme, vii., $ 1, 2. The right of pre-emption is there said to 
extend to the vendor's '* heirs or partners, and to such of his neighbours whose 
grounds are adjacent to his land, and who might have the same in mortgage, 
should they have been mortgaged." 



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308 EARLY LAW OP PBOPBBTT. [CHAP. VII, 

§ 238. With the exception of these scattered and doubt- 
ful hints, the Sanskrit writers take up the history of the 
family at a period when it had become an independent 
unit, imrestrained by any rights external to itself. As 
regards the rights of the members, inter se, their state- 
ments are very meagre. The status of the undivided 
family was, apparently, too familiar to everyone to require 
discussion. They only notice those new conditions which 
were destined to bring about the dissolution of the family 
itself. These were Self-Acquisition^ Partition and Aliena- 
tion, 
Origm of leif- § 239. Sblp- ACQUIRED PROPERTY in the earliest state 
pSy. ^^ of Indian society did not exist (u). So where the family 
was of the purely Patriarchal type, the whole of the 
property was owned by the father, and all acquisitions 
made by the members of the family were made for him, 
and fell into the common stock (t?). When the Joint 
Family arose, self-acquisition became possible, but was 
gradual in its rise. While the family lived together in a 
single house, supported by the produce of the common 
land, there could be no room for separate acquisition. 
The labour of all went to the common stock, and if one 
possessed any special aptitude for making clothes or 
implements of husbandry, his skill was exercised for the 
common benefit, and was rewarded by an interchange 
of similar good offices, or by the improvement of the 
family property, and the increased comfort of the family 
home. But as civilization advanced, and commerce arose, 
new modes of industry were discovered, which had no 
application to the joint property. As the family had only 
a claim upon its members for their assistance in the cul- 
tivation of the land, and the ordinary labours of the 
household, they could not compel the exertion of any 
special form of skill, unless it was to meet with a special 
reward. It was recognized that a member, who chose to 
abandon his claims upon the family property, might do 

(u) See Mayr, 28. (v) Mann, viii., § 416; anU % 98a 



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PARAS. 238 — 240.] SELF-ACQUISITION. 809 

80, and thenceforward porsne his own special occupation 
for his own exclusive profit (w). But it might be for the 
advantage of all to keep the specially gifted member in 
the community by allowing him to retain for himself the 
fruits of his special industry. On the other hand, an 
injury would be done to the family, if, while living at its 
expense, he did not contribute his fair share of labour to 
its support, or if he used any appreciable portion of the 
family property for the purpose of producing that which 
he afterwards claimed as exclusively his own. The 
doctrine of self -acquired property sprung from a desire 
to reconcile these conflicting interests. 

§ 240. The earliest forms of self -acquisition appear to ito ewUefi 
have been the gains of science and valour, peculiar to the *'™*' 
Brahman and the Kshatriya. Wealth acquired with a 
wife, gifts from relations or friends, and ancestral property, 
lost to the family and recovered by the independent 
exertions of a single member, were also included in the 
hst ; and Manu laid down the general rule, ** What a 
brother has acquired by labour or skill, without using the 
patrimony, he shall not give up without his assent, for it 
was gained by his own exertion *' (x). But we can see 
that self-acquisitions were at first not favoured, and 
that Manu's formula was rather strained against the Noi^vonnd. 
acquirer than for him. Katyayana and Vrihaspati refuse 
to recognize the gains of science as self -acquisition, when 
they were earned by means of instruction imparted at the 
expense of the family (y) ; and Vyasa similarly limits the 
gains of valour, if they were obtained with supplies from 
the common estate, such as a vehicle, a weapon, or the 
like, only allowing the acquirer to retain a double share (z). 
It would also seem doubtful whether the acquirer was 
originally entitled to the exclusive possession of the whole 
of his acquisitions. Yasishtha says, '* If any of the 

(u?l Manu, ix., § SS07 ; Yajnavftlkya, ii., 116 ; Mayr, 29, 43. 
(x) Manu, ix., $ 206— a09; Gautama, xxviii.. § 27, 28; Narada, xiii., § 6, 10, 
11 ; Vyaaa, 3 Dig., 333. 

(y) 8 Dig., 883, 840. («) 8 Dig., 71 ; V. May., iv., 7, $ 12 



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31ft BARLT LAW OP PBOPBBTY. [cHAP. VII, 

brothers has gained something by his own efforts, he 
receives a double share. " This text is supposed by 
Dr. Mayr to mark a stage at which the only benefit 
obtained by the acquirer was a right to retain, on partition, 
an extra portion of the fruits of his special industry (a). 
If that be the correct explanation, the text of Vyasa just 
quoted shows a further step in advance. He restricts the 
rights of the acquirer, only in cases where assistance, 
however slight, has been obtained from the family funds ; 
as where a warrior has won spoil in battle, by using the 
family sword or chariot. In later times all trace of such a 
restriction had passed away. The text of Vasishtha had 
lost its original meaning, and was explained as extending 
Manu's rule, not as restricting it ; and as establishing that 
a member of a family, who made use of the patrimony to 
obtain special gains, was entitled to a double portion as 
his reward (6). This is evidently opposed both to the 
spirit and the letter of the ancient law. It has, however, 
come to be the present rule in Bengal, as we shall see 
hereafter (§ 288). 

Bight over self • § 241. It does not appear that an acquirer had from 
•^''*" the first an absolute property in his acquisition, to the 

extent of disposing of it jn any way he thought fit. 
Originally the benefit which he derived from a special 
acquisition seems to have come to him in the form of a 
special share at the time of partition (c). While the 
family remained undivided, he would be entitled to the 
exclusive use of his separate gains. If he died undivided, 
they would probably fall into the common stock (d). 
Probably he was only allowed to alienate, where such 
alienation was the proper mode of enjoying the use of the 

(a) Vasishtha, xvii., § 61 ; Mayr, 29, 80; Dr. BarDell's translation of Varad- 
rajah (p. 81) renders it, " If any of them have self-iioqaired property, let him 
take two shares." The text soems to be similarly interpreted by Jimata Vahana. 
Daya Bham, ii., S 41. See post {^ 389. 

(h) MitiOrshara, i., 4, § 29 ; Daya Bhaga, vi., 1, § 24—29. 

(e) Vishnn, zvii., § 1 ; Tajnavalkya, ii., 118--120, and texts referred to at 
note (»)• 

(d) This is at present the case with the Nambadri Brahmans of the West 
Coast (11 Mad., 162), as to whom, see ante $ 44. 



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PARAS. 241 & 242.] PARTITION. 311 

property. This would account for the distinction which 
is drawn between self-acquired movables and immovables. 
The right to alienate the former is universally admitted by 
the commentators, but the Mitakshara cites with approval 
a text, which states that, ** Though immovables or bipeds 
have been acquired by a man himself, a gift or sale of 
them should not be made without convening all the 
sons" (e). According to the existing Malabar law, a 
member of a tarwdd may make separate acquisitions, and 
dispose of them as he pleases during his life ; but anything 
that remains undisposed of at his death becomes part of 
the family property (/). According to the Thesawaleme 
a member of an undivided family appears to have more 
power of disposal over self-acquired than he has over 
ancestral property, but not an absolute power (g), 

§ 242. Partition of family property, so far as that OnginAUy nn- 
property consisted of land, could not arise until the land 
possessed by each family had come to be considered the 
absolute property of the family, free from all claims upon 
it by the community. Nor would there be any very 
strong reason for partition, as long as the bulk of the 
property consisted of land. It would furnish a better 
means of subsistence to the members when it remained in 
a mass, than when it was broken up into fragments. The 
influence of the head of the family, and the strong spirit 
of union which is characteristic of Eastern races, would 
tend to preserve the family coparcenary, long after the 

(e) Mitakshara, i., 1, § 27. This text is ascribod by Mr. Colebrooke to Vyasa. 
In the Vivada Chintamani, p. 309, it is attributed to Prakasha, while Jafi^aii- 
natha quotes it as from Yajnavalkya. 2 Dig., 110. How far this is still the law 
in Southern India appears unsettled. Sec post § 344. The Viramitrodaya 
treats the consent of the sons to the alienation of self-acquired and immovable 
property, like that of sepirated members to the alienation of separated im- 
movable property aH beipg desirable for purposes of evidence, but not necessary 
as a matter of law. Viramit., p. 87, § 22. 

(/) Kallati v. Palat, 2 Mad. H. C, 162 ; Vira B<iyen v. Valia Rani, 3 Mad., 
141; Ryrap-pen Numbiar v. Kelu Kurup, 4 Mad., 150; Kunhnchay. Kutti 



Mammi, 16 Mad., 201. The same rule applies in Mapilla families which are 
- -- •' _ - -'Mkki ~ ■ „..-,.- 

the Alyanantana law of S 
oual representatives of the acquin 

The'mle as to Nambudris appears to be still unsettled. Chemnautha v. Pala- 



ffovemed by Maramakhatayem law. Illikka Pakramar v. Kutti Kunhamidf 
IT Mad., 69. By the Alyanantana law of South Canaia, such acquisitions pass to 
the perHonal representatives of the acquirer. Antamjna v. Kaveriy 7 Mad., 575. 



kuzku, 26 Mad., 662, p. 666. 
ig) Thesawaleme, ii., § 1. 



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812 EARLY LAW OP PBOPBRTY. [CHAP. VII, 

looser village bond had been dissolved. In Malabar and 
Canara, at the present day, no right of partition exists. In 
some cases, where the family has become very numerous, 
and owns property in different districts, the different 
branches have split into distinct tarwdds, and become 
permanently separated in estate. But this can only be 
done by common consent. No one member, nor even all 
but one, can enforce a division upon any who object (h). 
The text of U9ana8, already quoted (i), which forbids the 
division of land among kinsmen, seems to evidence a time 
when the Hindu joint family was as indivisible as the 
Malabar taiwid (k). 

Ito origin. § 243. Partition would begin to be desired, when self- 

acquisitions became common and secure. A man who 
found that he was earning wealth more rapidly than the 
other members of his family, would naturally desire to 
get rid of their claims upon his industry, and to transmit 
his fortune entire to his own descendants. This is one of 
the commonest motives which brings about divisions at 

StimnlAied by P^^^ent. But the family feeling against partition is so 
strong {l)y since what one gains all the others lose, that 
it is probable the usage would have had a painful struggle 
for existence, if it had not been supported by the strongest 
external influence, viz,, that of the Brahmans. This 
support it certainly had. As long as a family remained 
joint, all its religious ceremonies were performed by the 
head. But as soon as it broke up, a multiplication of 
ceremonies took place, in exact ratio to the number of 
fractions into which it was resolved. Hence a propor- 



(h) Munda Ohetty v. TimmajUy 1 Mad. H. C, 380 ; Timmappa v. Mahalinga^ 
4 Mad. H. C, 28. The same rule applies in the case of the Nambudri BraK- 
mans who are governed by Hindn law of a primitive character, 11 Mad., 162 ; and 
of the Tiyans of Malabar who follow ihe Makkatayem law, Bamen Mevon v. 
Chathunnit 17 Mad., 184 ; parbibility exists among tho lllavans of Palghat, who 
were originally Tiyans, but who have separated from ihb.i class. Velu v . Chuniu^ 
22 Mad.. 297. 

(i) AfUi § 236. {k) See Mayr, 81, 48. 

U) I have been assured that even in Bengal, where the family tie is so loose, 
no one can enforce a division except at the cost of all natural love and harmonj. 
In Madiiis I have invariably found that a family feud waH either the caase, or 
the consequence, of a suitf or partition. 



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PABAS. 243 & 244.] PARTITION. 313 

tionate increase of employment and emolument for the 
Brahmans. The Sanskrit writers are perfectly frank in 
advocating partition on this very ground. Manu says (m) : 
" Either let them live together, or if they desire religious 
rites, let them live apart ; since religious duties are 
multiplied in separate houses, their separation is therefore 
legal,'' — to which Kulluka adds, in a gloss, ''and even 
laudable ! " And so Gautama says (n) : ** If a division take 
place, more spiritual merit is acquired." 

§ 244. It was, however, by very slow steps that the right itsdevelopmeni. 
to a partition reached its present form. At first it is pos- 
sible that a member who insisted on leaving the family for 
his own purposes, went out with only a nominal share, or 
such an amount as the other members were willing to part 
with (o). This is the more probable, since, so long as the 
family retained its Patriarchal form, the son could certainly 
not have compelled his father to give him a share at all, or 
any larger portion than he chose. The doctrine that 
property was by birth — in the sense that each son was 
the equal of his father — had then no existence. The son 
was a mere appendage to his father, and had no rights of 
property as opposed to him {p). The family was then ^^^^^^ 
in the same condition as a Malabar tarwdd is now. There tarwdd. 
the property is vested in the head of the family, not 
merely as agent or principal partner, but almost as an 
absolute ruler. The right of the other members is only a 
right to be maintained in the family house, so long as orighuJiy aub- 
that house is capable of holding them. The scale of J©®* *? oonaent 

1-1 "1 -1 • -•• M , of father. 

expenditure to be adopted, and its distribution among the 
different members, is a matter wholly within the discretion 
of the kamaven. No junior member can claim an account, 
or call for an appropriation to himself of any special 
share of the income. Partition, as we have already seen, 
can never be demanded (g). It is quite certain that 

(m) ix., § ill. (n) xxviii., § 4. 

(o) Ante § 239, note w). See Peddayya v. Bcvmalingam^ 11 Mad., 406. 
(p) Mann, viii., § 416 ; ante § 230. 

Xq) Kunigaratu v. Arrangaden, 2 Mad. H. C, 12 ; Subbu Hegadi v. Tongu^ 
4 Mad. H. C, 196 ; ante § 242, note {h) ; Varanakot v. Varanakot, 2 Mad., 32S. 



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314 EARLY LAW OP PROPBRTY. [cHAP. VII, 

in the earlier period of Hindu law, no son could compel his 
father to come to a partition with him. Manu speaks 
only of a division after the death of the father, and says 
expressly that the brothers have no power over the pro- 
perty while the parents live. Kulluka Bhatta adds in a 
gloss, "unless the father chooses to distribute it " (r). 
This was no doubt added because the actual or mythical 
Manu did himself divide his property among his sons, or 
was alleged by the Veda to have done so, and the fact is 
put forward by the sages as an authority for such a 
division (s). The consent of the father is also stated by 
Baudhayana, Gautama, and Devala to be indispensable to 
a partition of ancestral property (t), and Sancha and 
Lichita even make his consent necessary where the sons 
desire to have a partition of their own self-acquired pro- 
perty (u). The usage among the Tamil population in the 
eighteenth century, that no partition could take place 
Growth of Bon'g during the life of the father without his consent, seems to 
"* * be equally clear (r). Subsequently a partition was allowed 

even without the father's wish, if he was old, disturbed 
in intellect, or diseased ; that is, if he was no longer fit to 
exercise his paternal authority (w). A final step was 
taken when it was acknowledged that father and son had 
equal ownership in ancestral property ; that is to say, 
when the Patriarchal Family had changed into the Joint 



As to separate maintenance, see Peru Nayar v. AyyapTpan^ i5., 2b2. Narayani 
V. Oovinda^ 7 Mad., 352. As to power of removinfi: the Karnaven for imprudent 
management, see Fonambilath Kunhamod v. Ponambilnth Kuitiath^ 8 Mud., 
169. Ab to caseH where a tarwdd is split up into several taverais, or subdivisions, 
see Chalayil Kandothay, Chathu.i Mad., 169 ; Mammali v. Pakki, 7 Mad., 428. 
As to one member having separate property, as affecting his right to mainte- 
nance, see Thuya v. Shungunni^ 6 Mad., 71. 

(r) Maim, ix., § 104; see also Vasishtha, xvii., §23-29. A text of Manu (ix., 
$ 209) is, however, cited in the Mitakshara, (i., 6, § 11) as evidencing the right 
of sons to compel a partition of the ancestral property held by their father. 
The translation given by Sir W. Jones (brethrett for sons) is incorrect, see 2 
W. & B., xxiv., 1st ed. The text itself refers, not to partition, but to self- 
acquisition. It contemplates the continuance of the crparcenHry, not its dis- 
solution, and points out what property falls into the common stock, und what 
does not. 

(t) Apastamba, xiv., § 11; Baudhayana, ii., 2, § 1. 

(t) Baudhayana, ii., 2, § 4; Gautama, xxviii., 2; Devala, 2 Dig., 522. 

(u) 2Dig.,526, 533. 

iv) Sorg H. L., 173, Bouchet, cited Man. Adm. Madras, 1, 107. 

iw) Sankha, or Harita, cited Mitakshara, i., 2, § 7. 



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PABA. 245.] PARTITION. 31& 

Family (x). It then became the rule that the sons could 
require a division of the ancestral property, but not of 
the acquired property (y). The joint family then ceased 
to be a corporation with perpetual succession, and became 
a mere partnership, terminable at will. 

§ 245. The above sequence of rights is perfectly intelli- Partition defer- 

•Ji T^ • j'-o: li. A ^ r /u 1 1- -^ red tm death of 

gible. It IS more difficult to account for the early limita- mother, 
tions upon partition with reference to the mother. There 
seems to be no doubt that originally the right of brothers 
to divide the family estate was deferred till after the death, 
not only of the father, but of the mother (z), Gautama, 
Narada and Vrihaspati allow of partition during the 
mother's life, but make it an essential that she should have 
become incapable of child-bearing, or that cohabitation on 
the part of the father should have ceased (a). The latter 
limitation, which is also the later, may be explained as 
intended to protect the interests of after-born children (6). 
It would operate as forbidding partition until after possi- 
bility of further issue was extinct. But why extend the 
prohibition to the death of the mother when the father 
was already dead? It might be suggested that this 
prohibition was necessary at a time when a widow was 
authorized to raise up issue by a relation. But it seems 
to me that it may evidence a time when the widow had a 
life estate in her husband's property, even though he left 
issue. It has often been said that the ground on which a 
widow's right of inheritance is rested, viz., that she is the 
surviving half of her husband, would be a reason for her 
inheriting before her sons, instead of after them (c). Now 
according to the Thesawaleme this is actually the rule. 
Where the father dies leaving children, the mother takes 
all the property and gives the daughters their dowry, but 

(k) See ante § 231 ; post § 268. 

( y ) Vyasa, 3 Dig., 86 ; Vishnu, xvii., § 1, 2. 

(z) Manu, ix., § 104; Sancha & Liohita, 2 Dig., 638; Yajuavalkya, ii., § 117; 
MitakshAra, i.. 8, § 1—3 ; Daya Hhaga, iii., § 1. 

(a) Gaatama, xxviii., § 2; Narada, ziii., §8:8 Dig., 48. 

ib) Daya Bhaga, i., § 46. The Sarasyati Vilusa, p. 12, § 61 treats it as intro- 
daced ifi the father's interest, so as to seoare him against a compulsory pai-tiiion, 
■o long as he might wish to marry again. (c) See 3 Dip., 79. 



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316 EARLY LAW OP PROPBBTY. [CHAP. VII, 

the sons may not demand anything as long as she lives ((2). 
An indication of such a state of things having once 
existed may perhaps be found in the text of Sancha and 
Lichita (e), which, after forbidding partition without the 
father's consent, goes on to say : " Sons who have parents 
hving are not independent, nor even after the death of 
their father while their mother lives." And similarly 
Narada makes the dependence of sons, however old, last 
during the life of both parents; and, in default of the 
father, places the authority of the mother before that of 
her first-born (/). 

BeetriotionB § 246. When we come to the commentators who wrote 

' at a time when all these restrictions had passed away, we 
find that the above passages had lost all meaning for them. 
But no Hindu lawyer admits that any sacred text can 
conflict with existing law. As usual, they attempt to 
reconcile the irreconcilable, either by forced explanations, 
or by simple collocation of contradictory passages, without 
any effort to explain their bearing upon each other. The 

Hitaksharft. Mitakshara, in dealing with the time of partition, quotes 
several of the texts just cited, as establishing that partition, 
during the father's lifetime, can only be made in three 
cases, viz,f first, when he himself desires it ; or, secondly, 
even against his will, when both parents are incapable of 
producing issue ; or, thirdly, when the father is addicted 
to vice, or afflicted with mental or bodily disease (g). 
And so he quotes, without any objection or explanation, 
the passage which directs partition to take place after the 
death of both parents (h). But in treating of the rights 
of father and son to ancestral property, he explains these 
texts as referring only to the self-acquired property of 

id) Thesawalemp, i., § 9. {e) 2 Dig., dUS. 

(/) T^arada, iii., § 38, 40 : "He i« of ajfe and independent in caae hi« purenU 
be dead. During their lifetime he is dependent, even though ho be grown old. 
Of the two parents the father has the greater authority, since the seed is worth 
more than the field ; in default of the father, the mother ; in her default, the 
firstborn. These are never subject to any control from dependent persons ; 
they are fully entitled to eive orders, and make gifts or sales.* ' 

ig) Mitakshara, i., 2, f 7. The Viramitrodaya only recognises the ^st and 
8rd cases (p. 49, §4). 

(h) MiUkshara, i., 8, §1,2. 



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PARAS. 246 — 248.] PABTITION. 317 

the father, and concludes that "while the mother is 
capable of bearing more sons, and the father retains his 
worldly affections, and does not desire partition, a distribu- 
tion of the grandfather's estate does nevertheless take 
place by the will of the son*'(i). 

§ 247. The Smriti Chandrika explains the passage of SmriU Chan- 
Mann, ix., § 104, which defers partition till after the death 
of both parents, as meaning that the property of each 
parent can only be divided after his or her decease (k). 
But the result of an involved disquisition as to the right 
of sons to exact partition during the father's life, appears 
to be that, as long as the father is competent to beget 
children, and to manage the family affairs, the sons have 
not such independent power as entitles them to compel 
him to proceed to a division (Z). 

It will be seen hereafter (m), that, until quite lately, 
the point was still open to discussion in Southern India. 

§ 248. The writers of the Bengal school had to perform Bengal writers, 
an exactly opposite feat of interpretation to that accom- 
plished by those of the Benares schools. The latter con- 
sidered the sons to be joint owners with their father, and 
had to explain away the texts which restricted or delayed 
their right to a partition. The former considered that the 
father was the exclusive owner, and had to explain away 
the other texts which authorised a partition. The mode 
in which they attained this result will be found in the first 
chapter of the Daya Bhaga. Jimuta Yahana takes up all 
the texts which assert that sons cannot compel a partition 
during the father's lifetime, as supporting his view that 
property in the sons arises not by birth, but by the death 
of the father. Consequently, even in the case of ancestral 
property, there can be no partition during the father's life, 
without his consent. Upon his death, whether actual or 

(i) Mitakshara, i., 6, § 5, 7, 8, 11. To the same effect is the Mayakha, iy., § 1 — 4. 
(k) Smriti Chandrika, i., § liZi— 17. This riew was adopted by Visvanipa, a very 
macii earlier authority, s. 4. 
{I) Smriti Chandrika, i., § 19-38, 28-38. (m) Post § 47]» 



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S18 



BARLT LAW OP PROPERTY. 



[chap. VII, 



Righto of 
mother. 



Results. 



civil, the property of the sons arises for the first time, and 
with it their right to a division (n). 

§ 249. The condition that the mother should be past 
child-bearing is taken by the writers of this school to be a 
limitation upon the father's power to make a partition, 
where the property is ancestral, on the groxmd that, if the 
ancestral estate were divided while the mother was still 
productive, the after-born children would be deprived of 
subsistence (o). They also interpret literally the prohibi- 
tion against partition even after the father's death, while 
the mother is still alive, and repudiate the explanation 
that this prohibition relates to the separate property of 
the mother (p). Later commentators, however, do not 
allow that the rule is still in force, or get out of it, by the 
usual Bengal formula, that it is morally wrong but legally 
valid. In practice neither the mother's death nor consent 
is now required (g). 

§ 250. The result of this long history is that the right 
to a partition at any time, between co-sharers, is now 
admitted imiversally. But the writers of the Bengal 
school do not allow that sons are co-sharers with their 
father. Elsewhere all members of a Joint Family are 
considered to be co-sharers, whether they are related to 
each other lineally or collaterally. 

§ 251. The Right op Alienation of course proceeds 
right to alienate. ^^^ j?a5sti with the development of property from its 
communal to its individual form. As each new phase of 
property arose, there was a transitional period before it 
absolutely escaped from the fetters which had ceased to be 
properly binding upon it. We have already seen reason 
to believe that there was a time when the shares of 
separated kinsmen in land were not absolutely at their 

(n) Daya Bhaffa, i.. § 11—31, 38—44, 60; ii.,J 8. Raehunandana, i., 6—14 ; 
ii., 26, 34, 36. This appears to be the mle in the Punjab. See Punjab Cnstomarr 
Law, n, 168, in, 122. 

(o) Daya Bhaga, i.. § 46; D. K. S., vi., § 1. 

h) Daya Bhaga. iii., § 1—11; D. K. 8., vii., § 1. See P. MacN., 87. 57; 
I W. MacN., 49. 

(g) 3 Dig., 78; 1 W. MscN., 60. 



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PARAS. 249 — 252.] RIGHT OP ALIENATION. 819 

own disposal. But all such restrictions had passed away 
before the time of Narada (r). So it would appear that at 
first sons were not at liberty to dispose of their own self- 
acquired property, and it was till lately an unsettled point 
whether, under Mitakshara law, a father has absolute 
control over self -acquired land (s). Conversely, a relic of 
the supreme power of the father, as head of the family, 
may, perhaps, be found in his asserted right to dispose of 
ancestral movables at pleasure (t). Possibly the absolute 
obligation of the sons to pay his debts may be traceable to 
the same source (u). 

§ 252. As regards joint property, it necessarily followed, Jo»nt property, 
from the very essence of the idea, that no one owner could 
dispose of that which belonged to others along with him- 
self, unless with their consent, or under circumstances of 
necessity, from which their assent might be implied (v). 
But a most important difference of opinion arose, as to who 
were joint owners in property, and as to the power of dis- 
posal each joint owner had over his own share. 

The former point arose with reference to the position of Power of father, 
a father in regard to his sons. Where the Joint Family 
was an enlargement of the Patriarchal Family, the power 
of the head would necessarily be different, according as he 
was looked upon as the father of his children, or merely 
as the manager of a partnership (w). The texts which 
had their origin in the former stage of the family would 
necessarily ascribe to him wider powers than those which 
originated in its later stage. For instance, when Narada 
says, '' women, sons, slaves, and attendants are dependent; 
but the head of a family is subject to no control in dispos- 
ing of his hereditary property " (x) ; he is evidently quoting 
a text which had once been true of the father as a domestic 
despot, but which had long since ceased to be true of him 
as the head of a Joint Family. At each stage of the 

(r) AfUe § 286; Narada. ziii., § 48. (<) Ante § 280; post $ 268, 257, 844. 

(t) Pott § 265. (u) Po$t § 802. \v) Vyasa, 1 Dig., 466 ; 2 Dig., 189. 

\vf) Ante § 281. (x) NanMla, iii., § 86. 



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820 



EARLY LAW OP PROPBRTT. [CHAP. VTI, 



Mitekahara. 



Property 18 by 
birtti. 



transition, the original writers, who spoke merely with 
reference to the facts which were under their own eyes, 
would speak clearly and unhesitatingly. When the era 
of commentators arrived, who had to weave a consistent 
theory out of conflicting texts, all of which they were 
bound to consider as equally holy and equally true, con- 
troversy would begin. Those who wished to diminish the 
father's authority would quote the later texts. Those who 
wished to enlarge his authority would quote the earher 
texts. This is exactly what took place. 

§ 253. The author of the Mitakshara enters into an 
elaborate disquisition, as to whether property in the son 
arises for the first time by partition, or the death of the 
previous owner, or exists previously by birth (y). He 
quotes two anonymous texts, " The father is master of the 
gems, pearls, corals, and of all other (movable property), 
but neither the father nor the grandfather is of the whole 
immovable estate ; '* and this other passage, ** By favour of 
the father, clothes and ornaments are used, but immovable 
property may not be consumed even with the father's 
indulgence" {z). He sums up his views in § 27, 28 as 
follows : — ** Therefore it is a settled point that property in 
the paternal or ancestral estate is by birth, although the 
father has independent power in the disposal of eflfects 
other than immovables for indispensable acts of duty, and 
for purposes prescribed by texts of law, as gifts through 
affection, support of the family, relief from distress, and 
so forth ; but he is subject to the control of his sons and 
the rest in regard to the immovable estate, whether 
acquired by himself or inherited from his father or other 
predecessor ; since it is ordained, ' though immovables or 
bipeds have been acquired by a man himself, a gift or sale 
of them should not be made without convening all the 
sons. They who are born, and they who are yet imbegot- 

iy) Mitakshara, i., 1> S 17—27; Viramit., oh. i. 

(«) Mitakshara, i., 1, § 21. The former of these texts is cited by Jimnta 
Vahana, ii., § 22, as from Tainavalkya. bat cannot be foand in the existing text 
It is also opposed to Tajnavslkya, ii., § 121, quoted j>ost § 266. 



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PABA8. 253 — 255.] RIGHT OP ALIENATION. 321 

ten, and they who are still in the womb, require the 
means of support. No gift or sale should therefore be 
made.'*' An exception to it follows: ** Even a single 
individual may conclude a donation, mortgage, or sale of 
immovable property during a season of distress, for the 
sake of the family, and especially for pious purposes." 

§ 254. The opinion of Vijnanesvara that sons had by 
birth an equal ownership with the father, in respect of 
ancestral immovable property, is followed by all writers, 
except those of the Bengal school, and is now quite beyond 
dispute (a). But upon the other points, mz,, as to the 
extent of the father's power over ancestral movables, and 
the limitation upon his power over self-acquired land, 
there is no such harmony, and his own views appear to 
have been in a state of flux upon the subject. 

§ 255. As regards movables, it is evident that the head Fattier's poww 

. over monubiM* 

of the family, whether m his capacity as father or as 
manager, must necessarily have a very large control over 
them. Money and articles produced to be sold or bar- 
tered, he must have the power to dispose of, in the ordinary 
management of the property. Clothes, jewels, and the 
like he would apportion to and reclaim from the various 
members of the family at his discretion. Household 
utensils, and implements of trade or husbandry, he would 
buy, exchange and dispose of as the occasion arose. Now, 
in early times, movable property would be limited to 
such articles. Even at the present day, not one Hindu 
family in a thousand possesses any other species of chattel 
property. The very instance adduced by the text — ^gems, 
pearls and corals — ^points to things over which the father 
would necessarily have a special control. And the 
Majrukha says of this very text, " it means the father's 
independence only in the wearing and other use of ear- 
rings, rings, etc., but not so far as gift or other alienation. 

(a) Smriti Chandrika, viii., § 17—20; Madhaviya, § 15, 16; Varadrajah, 
pp. 4—6; V. May., iv., 1, §8, 4; Vivada Chintamani, 809. As to whether 
land porohased wiUi ancestral movable property posBesses the incidents of 
ancestral immovable, see § 275. 

21 



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322 EARLY LAW OP PROPERTY. [cHAP. VII, 

Neither is it with a view to the cessation of the cause of 
his ownership in the production of a son. This very 
meaning is made manifest also by the text noticing only 
gems and such things as are not injured by use ** (b). 

§ 256. In another portion of the Mitakshara (o) he 
quotes without comment a text of Yajnavalkya (ii., § 121). 
" The ownership of father and son is the same in land 
which was acquired by the grandfather, or in a corrody 
(or settled income), or in chattels which belonged to 
him.** This evidently contradicts the idea that the 
father had any absolute power of disposal over ancestral 
movables. Further, although in ch. i., 1, § 24, he lays 
down the general principle that " the father has power, 
under the same text, to give away such effects, though 
acquired by his father ; ** in § 27, already quoted, he 
seems to limit this power to the right of disposing of 
movables for such necessary or suitable purposes as would 
come within the ordinary powers of the head of a house- 
hold. It is evidently one thing to bestow a rupee on a 
beggar, and another to give away the balance at the bank. 
Lastly, it is important to observe that none of the later 
writers in Southern India, who follow the Mitakshara, 
make any such distinction. They quote the above text 
of Yajnavalkya, and a similar one from Vrihaspati, which 
place ancestral movables and immovables on exactly the 
same footing as regards the son's right by birth (d). 

OverseU-ao- § 257. As regards the second point, viz., the restriction 

'^ ' upon a father's power to dispose of his own self-acquired 

land, Vijnanesvara is equally at variance with himself. 
He asserts the restriction in the most unqualified terms 
in the passage already quoted. He denies it in equally 
unqualified terms in a later passage (e). ** The grandson 

(6) v. May., iv , 1, § 6. (c) Mitakshara, i., 6, § 8. 

(d) Smriti Chandrika, viii., § 17—20; Madhaviya, § 15, 16; Varadrajah, 
§ 4—6. Exactly a similar conflict of opinion to that which is found in the Mitak- 
shara as regards the father's power of disposal over movable property appears 
in the Viramitrodaya, at p. 6. § 9; p. 74, $ 17, and p. 16, § 80. See the modem 
decisions on this point, po$t § 386. 

{e) MiUkshara, i., 5,1 9, 10, 11. 



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PARAS. 256 — 258.] RIGHT OP ALIENATION. 323 

has a right of prohibition, if his unseparated father is MitakBhara. 
making a donation, or a sale of effects inherited from the 
grandfather ; but he has no right of interference, if the 
effects were acquired by the father. On the contrary, he 
must acquiesce, because he is dependent. Consequently 
the difference is this : although he has a right by birth 
in his father's and in his grandfather's property, still, since 
he is dependent on his father in regard to the paternal 
estate, and since the father has a predominant interest, as 
it was acquired by himself, the son must acquiesce in the 
father's disposal of his own acquired property ; but since 
both have indiscriminately a right in the grandfather's 
estate, the son has a power of interdiction." And in the 
next paragraph he quotes Manu, ix., § 209, as showing 
that the father was not compelled to share self-acquired 
wealth with his sons. The Smriti Chandrika is explicit Smriu chan- 
on the point that as regards all self-acquired property, 
w;^thout any exception, the father has independent power, 
to the extent of giving it away at his pleasure, or enjoying 
it himself, and he cites texts of Katyayana and Vrihaspati, 
which state this to be the rule as plainly as can be (f) . 
On the other hand, the Vivada Chintamani, which always Vivada Cbinba- 
maintains the rights of the family in their strictest form, ™*^*' 
cites with approval the same text as that which is relied 
on by the Mitakshara, as restraining the dealings of the 
father with self-acquired land (g). But in an earlier 
chapter the author states the unqualified rule, " Self- 
acquired property can be given by its owner at his 
pleasure " (p. 76), and at p. 229 he repeats the same rule 
expressly as to a father. 

§ 258. It is probable that the text, which is relied on EzpianaUon of 
both by the Mitakshara and the Vivada Chintamani, was 
one of a class of texts which forbid the alienation by a 
man of his entire property, so as to leave his family 

(/) Smribi Chandrika, viii., § 22—28. Mr. Colebrooke refers to both the 
Smriti Chandrika and the Madhayiya as laying down exactly the opposite doc- 
trine (2 Stra. H. L., 489, 441). I suppose the passages he refers to are in por* 
tions which have not yet been translated. I have been unable to find them. 

{g) Vivada Chintamani, p. 309. 



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Bhftga. 



324 EARLY LAW OP PBOPERTY. [CHAP. VII, 

destitute (h). To our ideas such a prohibition would seem 
to be unnecessary. But in India, where generosity to 
Brahmans was inculcated as the first of virtues, and a life 
of asceticism and mendicancy was pointed out as the 
fitting termination of a virtuous career (i), a direction that 
a man should be just before he was generous, might not 
have been uncalled for. Whether the direction, so far as 
it regards self -acquired land, is anything more than a 
moral precept, is a point which has only been finally 
settled by a decision of the Privy Council in 1898 (k). 

TheDaya § 259. When we come to Jimuta Vahana, we find that 

by a little dexterous juggling he arrives at exactly the 
opposite conclusion from that of the Mitakshara, out of 
precisely the same premises. He, too, discusses the origin 
of a son's right in property, with the same elaborate 
subtlety as Vijnanesvara, and announces as the result of 
the texts, " That sons have not a right of ownership in the 
wealth of the living parents, but in the estate of both 
when deceased ** (Z). The process he adopts is as follows. 
He relies on the texts of Manu and Devala which prohibit 
partition in the father's lifetime, without his consent, as 
showing that the father was the absolute owner of the 
property (m). He then grapples with the text — "The 
father is master of the gems, pearls and corals, and of all 
other (movable property), but neither the father nor the 
grandfather is so of the whole immovable estate." From 
this he argues: (1) That since the grandfather is men- 
tioned, the text must relate to his effects, triz., to ancestral 
property ; (2) That with regard to such property, " the 
father has authority to make a gift or other similar dis- 
position of all effects other than land, etc., but not of 
immovables, a corrody, and chattels (i.e., slaves) ; " 
(8) That even as to land " the prohibition is not against 

{h) See Narada, iv., §4, 6; Vrihaspati. 2 Dig.. 98; Daksha, 2 Dig., 110; 
Viramit., p. tt9. 

(i) Mann, vi. 

Ik) See the modern decisions, post § 8d4. 

(l) Daya Bhaga, i., § 80 ;D. E. S., vi., § 18; Raghunandana, i., 6—14 ; ii., 36. 
. (m) Daya Bhaga, i., § 12-84. 



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PABAS. 259 & 260] RIGHT OP ALIENATION IN BENGAL. 325 

a donation or other transfer of a small part not incom- 
patible with the support of the family. For the insertion 
of the word * whole * would be unmeaning (if the gift of 
even a small part were forbidden)." The other texts 
which forbid a transfer by one of several joint owners, or 
even the sale by a father of his own self-acquisitions 
without the consent of his sons, he dismisses with the 
simple remark, that they only show a moral oflfence : 
** Therefore, since it is denied that a gift or sale should be 
made, the precept is infringed by making one. But the 
gift or transfer is not null, for a fact cannot be altered by 
a hundred texts '* (n). 

§ 260. Of course this argument is opposed to the first Attempts 
principles both of historical and legal reasoning. Manu ^dthtextsl'*** 
and Devala forbid compulsory partition at the will of the 
sons, in order to prevent the family corporation being 
broken up. The whole object of the prohibition would be 
frustrated if the father was at liberty to dispose of its pro- 
perty, in whole or in part, at his own pleasure. Not a sug- 
gestion is to be found in any writer earlier than Jimuta 
Vahana himself, that he possessed such a right, or anything 
approaching to it (o). Every authority which speaks of 
alienation, directly negatives the existence of such a right. 
It might with equal logic be argued that the karnaven of 
a Malabar tarw&d at the present day is absolute owner of 
its property, because none of the junior members can 
demand a share. The indissoluble character of the pro- 
perty would furnish as complete an answer to the former 
claim as it does to the latter. As to the suggestion that 
what is forbidden may still be valid, Mr. W. MacNaghten 
points out that there is a distinction between an improper 
but legal mode of dealing with a man's self-acquisition, 
which is wholly his own, and an improper and illegal 
manner of deaJing with ancestral land which is only shared 

(n) Daya Bhaga, ii , j 22, 30; D. K. 8., vi., § 1»— 20. 

(o) The only exception is the text of Narada, cited ante § 252, which, even 
if it is to be taken literally, plainly refers to a time anterior to that of the Joint 
Family. 



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326 



EARLY LAW OF PROPERTY. [CHAP. VII, 



Suggested ex- 
pluiatioa of 
Bengal doc- 
trinee. 



by him with his sons. He was of opinion that, as to the 
former, the father could dispose of it as he liked, while as 
to the latter he could only dispose of his own share (p). 
But the badness of the reasoning arose from the fact that 
Jimuta Vahana considered it necessary to reconcile the 
usage, which had sprung up in Bengal, with the letter of 
texts which applied to a state of things that had ceased to 
exist. He was the apologist of a revolution which must 
have been completed long before he wrote. But from his 
writings that revolution derived the stability due to a 
supposed accordance with tradition. K no law-books of a 
later tone than the Mitakshara had been in existence 
when our Courts were established, there can be little 
doubt that the conscientious logic of English judges would 
have refused to recognize that the revolution had ever 
taken place. 

§ 261. There are probably no materials in existence 
which would enable us to trace the causes of that change 
in popular feeling and family law, which is marked by the 
difference between the Mitakshara and the Paya Bhaga. 
Much was of course due to the natural progress of society. 
A race so full of commercial activity as the Hindus who 
were settled along the lower course of the Ganges, would 
find their growth cramped by the Procrustean bed of 
ancient tradition. As soon as land came to be looked on 
as an object of mortgage and sale, the restraints upon 
alienation imposed by the early law would be found in- 
sufferable. But I imagine that the Brahmanical influence 
helped most strongly in the same direction. Sir H. S. 
Maine, while discussing a similar transition in Celtic law, 
says : " When this writer affirms that, xmder certain 
circumstances, a tribesman may grant or contract away 
tribal land, his ecclesiastical leaning constantly suggests a 
doubt as to his legal doctrine. Does he mean to lay down 

(p) 1 W. MacN. Pref., vi., 2—16. See per Easi, C. J., 2 M. Dig., 200—204 ; 
per Peacock, C. J., Mangala v. Dinanatn, 4 B. L. R. (O. C. J.), 78; S^ C, 12 
Sath. (A. O. J.)} 85. As to the modern decisions, 9o&po»t § 871. 



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PAHAS. 261 & 262.] OBIGIN OF BENGAL SYSTEM. 327 

that the land may be parted with generally, or only that 
it may be alienated in favour of the Church? This 
difficulty of construction has an interest of its own. I am 
myself persuaded that the influence of the Christian 
Church on law has been very generally sought for in a 
wrong quarter, and that historians of law have too much 
overlooked its share in diffusing the conceptions of free 
contract, individual property, and testamentary succession, 
through the regions beyond the Roman Empire, which 
were peopled by communities held together by the primi- 
tive tie of consanguinity. It is generally agreed among 
scholars that churchmen introduced these races to wills 
and bequests. The Brehon tracts suggest to me at least 
that, along with the sacredness of bequests, they insisted 
upon the sacredness of contracts ; and it is well known 
that, in the Germanic countries, their ecclesiastical socie- 
ties were among the earliest and largest grantees of 
public or ' folk ' land. The Will, the Contract, and the 
Separate Ownership, were in fact indispensable to the 
church as the donee of pious gifts *' {q). . 



§ 262. It seems to me that every word of this passage is influence ©r 

applicable to the effect caused by Brahmanical influence ^ 

upon Hindu law. The moral law, as promulgated byManu, ^ TLJJL^v. ^ 

might be described as a law of gifts to Brahmans. Every 

step of a man's life, from his birth to his death, required 

gifts to Brahmans. Every sin which he committed 

might be expiated by gifts to Brahmans. The huge 

endowments for religious purposes which are found in 

every part of India show that these precepts were not a 

dead letter. Every day's experience of present Indian 

life shows the practical belief in the efficacy of such gifts. 

Naturally, every rule of law which threw an impediment 

in their way would be swept aside as far as possible. 

And when we remember that the Brahman was the 

King's minister in his Cabinet, the King's judge in his 

Court, it is obvious that it was a mere question of the 

(q) Maine, Early Instit., 104. 



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828 



BABLY LAW OP PROPERTY. [CHAP. VII, 



Powerful in 
Bengal. 



Penonal infln- 
«noe of Jimnto 
Vahena. 



means that would be adopted to secure the end. Even 
the earlier writers had led the way, by mingling pious 
gifts with the necessary purposes which would justify an 
alienation of family property (r). It was a further step to 
emancipate the holder of the estate from all control 
whatever. This was effected in Bengal by the doctrine 
that a father was absolute owner of the property ; and, 
by its further extension, that every collateral member 
held his share as tenant in common, and not as joint 
tenant. The favour shown to women, who are always 
the pets of the priesthood, by allowing them to inherit 
and to enforce partition in an undivided family, seems to 
me an additional stage in the same direction. The validity 
attributed to death-bed gifts for religious objects, which 
gradually ripened into a complete system of devise (s), 
completed the downfall of the common law of property 
in India. 

§ 263. There can be no doubt that Brahmanism was 
rampant among the law writers of Bengal. I think it 
can be shown that it was this influence which completely 
remodelled the law of inheritance in that Province, by 
applying tests of religious efficacy which were of abso- 
lutely modern introduction (t). We can easily see why 
this influence was more powerful in Bengal than in 
Southern and Western India, where the Brahmans had 
never been so numerous ; and than it was in the Punjab, 
where Brahmanism seems from the first to have been a 
failure (w). But it is difficult to see why a similar system 
should never have been developed in Benares, which is the 
very hot-bed of Brahmanism. Much may, perhaps, have 
been due to the personal character and influence of 
Jimuta Vahana. It has been supposed that the Days 
Bhaga was written under the influence of one of the 
Hindu sovereigns of Bengal, and perhaps even received 
his name, much as the great work of Tribonian came to 



r) Katyayatia, 2 Dig., 96 ; Mitakshara, i., 1, § 28; 

a) See pott § 406. 

n) See 2 Muir S. T., 482, ante § 8. 



Daya Bhaga, xi., 1, $ 68. 
it) See post § 609, et seq. 



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PABAS. 263 & 264.] RIGHT OP ALIENATION IN BENGAL. 829 

bear the name of Justinian (v). It would be unphiloso- 
phical to suppose that he originated the changes we have 
referred to. But if he had had the acuteness to see that 
these changes actually had taken place, the wisdom to 
adopt them, and the courage to avow that adoption, it is 
obvious that a work written under such inspiration 
would take precisely the form of the Daya Bhaga. It 
would be based upon the new system as a fact, while its 
arguments would be directed to show that the new system 
was the old one. Its authority would necessarily be 
accepted as absolute throughout the kingdom, and it 
would become a fresh starting point for all subsequent 
treatises on law. On the other hand, the Benares jurists, 
in consequence of the very strength of their Brahmanism, 
would continue slavishly to reproduce their old law 
books, without caring, or daring, to consider how far they 
had ceased to correspond with facts ; just as we find com- 
paratively modern works discussing elaborately the twelve 
sorts of sons, long after any but two had ceased to be recog- 
nized. Conversely, of course, the treatises themselves, 
both in Bengal and Benares, would alter the current of 
usage, by affecting the opinion of pundits and judges upon 
any concrete case that was presented for their decision. 
If any writer of equal authority with Jimuta Vahana had 
arisen in Southern India,had represented plainly the usages 
which he found in force, and painted up the picture with 
a plausible colouring of texts, we should probably find the 
Mitakshara as obsolete in Madras as it is in Bengal. 

§ 264. When Jimuta Vahana had established to his J*o?:«y9''**»«» 

^ . . . to distnbate. 

own satisfaction that a father was the absolute owner of 
property, and that the sons had no right in it till his 
death, it would seem to follow, as a necessary consequence, 

(v) See Colebrooke's Introduction to the Daya Bhaga. Dr. Jolly, however, 
states that the fabulous character of the supposed monarch is now established, 
Lect. 22. He suggests that the difference between the doctrines of the Dayu 
Bhaga and the Mitakshara may arise from the fact that Jimuta Vahana followed 
the views of commentators earlier than Vijnaneswara. Ibid. 25. It seems to 
me difficult to account for the uniformly progressive character of his doctrines 
by any such supposition. 



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330 EARLY LAW OP PROPERTY. [ CHAP. VII, 

that if the father chose to make a partition, he might 
distribute his estate among his sons exactly as he liked. 
But this conclusion he declined to draw. Nothing can 
show the artificial character of his reasoning more strongly 
than this fact. In the very chapter in which he lays down 
that the absolute ownership of the father enables him to 
deal with his ancestral property as he likes, he also lays 
down that if he chooses to distribute it, he must do so 
upon general principles of equality, and cannot, even for 
himself, reserve more than a double share {w). He 
affirms for one purpose the very ownership by birth which 
he denies for another. The reason probably was that 
xmequal distributions of a man's property during his life 
had not become common, and that there was no particular 
motive for encouraging them. The result, however, 
possibly was to preserve the family union in many cases 
in which it would otherwise have been broken up. 

Interest of § 265. The second point upon which Jimuta Vahana 

hiB diver ^^ differed from the earlier writers was as to the nature of 
the interest which each person, who was admitted to be a 
co-sharer, had in the joint property. The point will have 
to be fully discussed hereafter (a;). It is enough to say 
here that the Mitakshara, and those who follow its 
authority, consider that no coparcener has such an ascer- 
tained share, prior to partition, as admits of being dealt 
with by himself, apart from his fellow-sharers (y). They 
look upon every co-sharer as having a proprietary right in 
the whole estate, subject to a similar right on the part of 
all the others. Jimuta Vahana, on the other hand, denies 
the existence of such a general right, and says that their 
property consists in unascertained portions of the 
aggregate (z). Hence he argues that the text of Vyasa 
which prohibits sale, gift or mortgage by one of several 



{w) Day a Bhago, ii., § 16 — 20, 47, 56—82. Se« the whole sabject discussed, 
po8t § 490—492. 

{x\ See post § 873. (y) See Vyasa, 1 Dig., 466. 

(e) Daya Bhaga, xi., 1, § 26. 



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PARAS. 265 — 267.] RIGHT OP ALIENATION IN BENGAL. 331 

coparceners, cannot be taken literally, for each has a 
property consisting in the power of disposal at pleasure (a). 

§ 266. Another feature of Bengal law, which must have Rights of 
helped much to break up the family union, was the favour ^^^^' 
with which it regarded the rights of women. According 
to the Benares school, a widow could never inherit unless 
her husband had been a sole or a separated owner (6). 
This resulted from the nature of his interest in the 
property. So long as he was undivided, he had not a share 
but a right to obtain a share by partition. It he died 
without exercising this right, his interest merged, and 
went to enlarge the possible shares of the survivors. But 
according to the Daya Bhaga, a widow inherits to an 
issueless husband whether he dies divided or undivided. 
This would have been a logical result of holding that each 
coparcener during his lifetime held a definite though 
unascertained share. But though Jimuta Vahana relies 
upon this as an answer to his opponents, he grounds the 
right itself upon the texts of early sages. It is probable 
that in this respect he may have been really reviving the 
old law (c). Certainly he was so in allowing the mother 
a right to obtain a share. But the result is that in Bengal 
property falls far more frequently under female control 
than it does in other parts of India, and we may be certain, 
with proportionate advantage to the Brahmans. 

§ 267. I have now traced the changes which the law of WiUg. 
property underwent in India, up to the time when its 
administration fell into English hands. I have not 
touched upon the subject of wills. The fruitful germ of a 
system of bequest can be seen in very early writers, but 
all the evidences of its growth are to be found in the 
records of the British Courts. 

The succeeding chapters will be devoted to a fuller 
examination of this law, as it has been developed and 
applied by our tribunals. 

{a) Daya Ehnga, ii., § 27; 2 Dig., 99—106, 189; D. K. 8., xi. 

{bj Mitakshara. ii., 1, § 30. 

(c) Daya Bhaga, xi., 1, § 1—26; see ante § 245. 



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CHAPTER VIII. 

THE JOINT FAMILY. 

Divigion of § 268. In discussing the Joint Family or coparcenary 

^ ' which forms the subject of this chapter, we shall have to 

consider : firsts who are its members ; secondly^ what is 
coparcenary property ; thirdly, self-acquisition, and the 
burthen of proof when it is set up ; fourthly, the mode in 
which the joint property is enjoyed. The historical 
discussion contained in the previous chapter has shown 
that originally every Hindu family, and all its property, 
was not only joint but indivisible. This state of things 
ceased when partition broke up the family, and when 
property came to be held in severalty, either as being the 
share of a divided member, or as being the separate 
acquisition of one who was still living in a state of union. 
Presumption of But the presumption still continues that the members of a 
onion. Hindu family are living in a state of union, unless the 

contrary is established. " The strength of the presump- 
tion necessarily varies in every case. The presumption 
of union is stronger in the case of brothers than in the 
case of cousins, and the farther you go from the founder 
of the family, the presumption becomes weaker and 
weaker * (a). Even where separation, either of person or 
estate, is established, it can never be more than tempomry. 
The man who has severed his union with his brothers, if 
he has children, becomes the head of a new joint family, 
composed of himself and his children, and their issue. 
And so property, which was the self-acquisition of the 
first owner, as soon as it descends to his heirs becomes 
their joint property, with all the incidents of that 
condition (6). 

(fl) Moro Visvanaih v. Ganesh, 10 Bom. H. C, 444, 468; 2 Stra. H. L., 347; 
Pritkoer v. Mahadeo Pershad, 21 1. A., 184 ; S. C, 22 Cal., 85. 
(ft) RamNarain Singh v. Pertum Singh 11 B. L. R., 397 ; S. C, 20 Suth., 189. 



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PARAS. 268 — 270.] PROCEEDS BY SURVIVORSHIP. 333 

§ 269. It is evident that there can be no limit to the its membera 
number of persons of whom a Hindu joint family consists, 
or to the remoteness of their descent from the common 
ancestor, and consequently to the distance of their rela- 
tionship from each other. But the Hindu coparcenary, 
properly so called, constitutes a much narrower body. 
When we speak of a Hindu joint family as constituting a 
coparcenary, we refer not to the entire number of persons 
who can trace from a common ancestor, and amongst 
whom no partition has ever taken place ; we include only 
those persons who, by virtue of relationship, have the 
right to enjoy and hold the joint property, to restrain the 
acts of each other in respect of it, to burthen it with their 
debts, and at their pleasure to enforce its partition. 
Outside this body there is a fringe of persons who possess 
inferior rights such as that of maintenance, or who may, 
under certain contingencies, hope to enter into the copar- 
cenary. In defining the coparcenary, therefore, it will be 
necessary somewhat to anticipate matters which have to 
be more fully treated of hereafter. 

§ 270. The Hindu lawyers always treat partition and 
inheritance as part of the same subject (c). The reason of 
this is that the normal state of the property, with which 
they have to deal is to be joint property, and that they can 
only explain the amount of interest which each member 
has in the property, by pointing out what share he would 
be entitled to in the event of a partition. 

There is no such thing as succession, properly so called, donotsaooMd 
in an undivided Hindu family (d). The whole body ^f *« «^°^ ^**»«'- 
such a family, consisting of males and females, constitutes 
a sort of corporation, some of the members of which are 

(c) The works of Jimata Vahana and Madhaviya are known by names (Daya- 
bhaga and Daya-vibhaga) which mean simply partition of heritage. See 
BJdmul Dose ▼. Ohoonee LaU^ 2 Cal., 879, where the right of a nephew to share 
in the property with his uncles was argued as if he was claiming to succeed 
to the property before his uncles. 

(d) Ooparoenary and survivorship are incidents of Hindu law, which axe 
repealed Dy the Succession Act, exoe)it as to rights previously vested, in the 

i ol Native Chrietifkns. TeUU v. 8€Udanha, 10 Mad., d9. 



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birth: 



334 THE JOINT FAMILY. [cHAP. VIII, 

coparceners, that is, persons who on partition would be 
entitled to demand a share, while others are only entitled 
to maintenance. In Malabar and Canara, where partition 
is not allowed, the idea of heirship would never present 
itself to the mind of any member of the family. Each 
Rights arise by person is simply entitled to reside and be maintained in 
the family house, and to enjoy that amount of aflBuence 
and consideration which arises from his belonging to a 
family possessed of greater or less wealth (§ 244). As he 
dies out his claims cease, and as others are born their 
claims arise. But the claims of each spring from the 
mere fact of their entrance into the family, not from their 
taking the place of any particular individual. Deaths may 
enlarge the beneficial interest of the survivors, by diminish- 
ing the number who have a claim upon the common fund, 
just as births may diminish their interests by increasing 
the number of claimants. But although the fact that A 
is the child of B introduces him into the family, it does 
not give him any definite share of the property, for B 
himself has none. Nor upon the death of B does he 
succeed to anything, for B has left nothing behind to 
succeed to. Now in every part of India where the 
Mitakshara prevails the position of an undivided family is 
exactly the same, except that within certain limits each 
male member has a right to claim a partition, if he likes. 
But until they elect to do so, the property continues to 
devolve upon the members of the family for the time being 
jre asMJTtained by Survivorship and not by succession. The position of 
any particular person as son, grandson, or the like, or as 
one of many sons or grandsons, will be very important 
when the time for partition arrives, because it will deter- 
mine the share to which he is then entitled. But until that 
time arrives he can never say, I am entitled to such a 
definite portion of the property ; because next year the 
proportion he would have a right to claim on a division 
might be much smaller, and the year after much larger, as 
births or deaths supervene. For instance, suppose a family 



by partition. 



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PARA. 270.] MEMBERS OF THE COPARCENARY. 336 

to consist only of A and his sons B and C, on a partition 
each would take one-third. But if D was born while the 
family remained joint, each would take one-fourth. Sup- 



h 



B C 

. I 



H I 

posing the family still to remain undivided, on the death 
of A, the possible shares of the three sons would be 
enlarged to one-third ; and if B were subsequently to die 
without issue, they would again be enlarged to one-half. 
As C and D married, their sons E, F and G would enter Mitakahawu 
into the family and acquire an interest in the property. 
But that interest again would be a shifting interest, 
depending on the state of the family. If C were to die, 
leaving only two sous E and F, and they claimed a parti- • 
tion, each would take one-half of one-half. But if X had 
previously been born, each would only take one-third of one- 
half. K they put ofif their claim for a division till D, G, H 
and I had all died, they would each take one-third of the 
whole. It is common to say that in an undivided family 
each member transmits to his issue his own share in the 
joint property, and that such issue takes per capita inter 
se, but per stirpes as regards the issue of other members. 
But it must always be remembered that this is only a 
statement of what would be their rights on a partition. 
Until a partition their rights consist merely in a common 
enjoyment of the common property, to which is further 
added the right of male issue to forbid alienations, made 
by their direct ancestors (e). These observations, however, 
require modification in Bengal. There, " admitting the Bengal, 
family to have been joint, and the sons joint in estate, 

{e) See tliig subject discassed, Appovier v. Bama Subbaiyan^ 11 M. I. A., 76 ; 
8. C, 8 Sath. (P. C). 1 ; Sadabart Prasad v. Foolbash Koer, 3 B. L. R. (P. B.), 
fil; 8. C, 14 Suth., 840; BamNarainv. Pertum Singh, 20 Sath., 189 ; S. C, 11 
B. Li. R., 897 ; Bajnarain v. HeeralaL 5 Cal., 142; BnimulDoas ▼. Ohoonee Lall, 
2 CaL, 879; Debt Parthad v. ThakUr Dial, 1 All., 106 ; Baol Gorain r. Teea 
Chrain, 4 B. L. R., Appx. 90; Sudemanam v. Narasimhulut 25 Mad., 149. 



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336 THE JOINT FAMILY. [cHAP. VIII, 

the right of any one of the co-sharers would not, under 
the Hindu law, pass over, upon his death, to the other 
co-sharers. It would be part o f the estate of the deceas ed 
co-sharer and wou ld devolve j apon his le gatees or natur al 
heirs " (f). The share of an undivided brother dying 
without issue will pass to his widow, daughter and 
daughter's son, and may thus vest in, a family completely 
different from his own (§ 527). 
Theooparoenary § 271. Now it is at this point that we see one of the 
most important distinctions between the coparcenary and 
the general body of the undivided family. Suppose the 
property to have all descended from one ancestor, who is 
still alive, with five generations of descendants. It by no 
means follows that on a partition every one of these five 
generations will be entitled to a share. And if the common 
ancestor dies, so that the property descends a step, it by 
no means follows that it will go by survivorship to all these 
generations. It may go to the representatives of one or 
more branches, or even to the widow of the survivor of 
several branches, to the total exclusion of the representa- 
tives of other branches. The question in each case will be, 
who are the persons who have taken an interest in the pro- 
limited to those perty by birth (g). The answer will be, that they are 
^^l^Bwa oaSe. the persons who offer the funeral cake to the o wner of thft 
property. That is to say, the three generations next to the 
owner in unbroken male descent (fe). Therefore, if a man 
has Hving, sons, grandsons, and great-grandsons, all of 
these constitute a single coparcenary with himself. Every 
one of these descendants is entitled to offer the funeral cake 
to him, and therefore every one of them obtains by birth 

(/) Per Turner, L. J., Soorjeemoney Dossee v. DenobundOy 6 M. I. A., 563; 
S. C, 4 Suth. (P. C), 114. Subramaniya Pandiyav. Sivasubramantya, 
17 Mu<)., p. 830. This seomB also to have been the view of Apararka. Parti tioo, 
he says, aces not create a new right ; it has bat the effect to render visible the 
right of each of the former joint owners to his share of the estate. Jollv, Leot. 
87. 114, K. 

{g) This principle will not apply in Bengal, where sons take no interest by 
birth in their father's property. See ante § 269. 

(h) Mano.ix., UB6: Viramit., p.72,§16,po«<§601. I may as weU sUte once 
for all, that the word '* issae '* will be used throoghoot this work as embraoiiig 
son, grandson, and great-grandson. 



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PARAS. 271 & 272.] MEMBERS OP THE COPARCENARY. 337 

an interest in his property. But the son of one of the 
great-grandsons would not offer the cake to him, and there- 
fore is out of the coparcenary, so long as the common 
ancestor is alive. But while fresh links are continually 
being added to the chain of descendants by birth, so earlier 
links are being constantly removed from the upper end of 
the chain by death. So long as the principle of survivor- 
ship continues to operate, the right to the property will 
devolve from those who are higher in the line to those who 
are lower down. As each fresh member takes a share, his 
descendants to the third generation below him take an 
interest in that share by birth. So the coparcenary may 
go on widening and extending, until its members may 
include persons who are removed by indefinite distances 
from the common ancestor. But this is always subject to 
the condition that no person who claims to take a share is 
more than three steps removed from a direct ascendant 
who has taken a share. Whenever a break of more than 
three degrees occurs between any holder of property and 
the person who claims to take next after that holder, the 
line ceases in that direction, and the survivorship is 
confined to those collaterals and descendants who are 
within the limit of three degrees. This was laid down in 
two cases in Bombay and Madras. 

§ 272. In the former case the claim to partition was OoparoenarTnot 
resisted, on the ground that the plaintiff was beyond the d^J^f^ 
fourth degree from the acquirer of the property in dispute, ^ 
the defendant being within that degree. It was argued 
that the analogy of the law of inheritance prevented a 
lineal descendant, beyond the great-grandson, from claim- 
ing partition at the hands of those who are legally in 
possession, as descendants from the original sole owner of 
the family property or any part of it (i). West, J., said : 
" The Hindu law does not contemplate a partition as 
absolutely necessary at any stage of the descent from a 
common ancestor ; yet the result of the construction 

(f) Maro Viahvamath ▼. QtTiUh, 10 Bom. H. C, 444, 449. 

22 



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888 THE JOINT FAMILY. [cHAP. VIII, 

I pressed on us would be to force the great-grandson in 
every case to divide from his coparceners, unless he desired 
his own offspring to be left destitute. Where two great- 
grandsons lived together as a united family, the son of 
each would, according to the Mitakshara law, acquire by 
birth a co-ownership with his father in the ancestral 
estate ; yet if the argument is sound, this co-ownership 
would pass altogether from the son of A or B, as either 
happened to die before the other. If a coparcener should 
die, leaving no nearer descendant than a great-great- 
grandson, then the latter would no doubt be excluded at 
once from inheritance and from partition by any nearer 
heirs of the deceased, as, for instance, brothers and their 
sons ; but where there has not been such an interval as to 
cause a break in the course of lineal succession, neither has 
there been an extinguishment of the right to a partition of 
the property in which the deceased was a co-sharer in actual 
possession and enjoyment (k) . Each descendant in succes- 
sion becomes co-owner with his father of the latter's share, 
and there is never such a gap in the series as to prevent the 
next from fully representing the preceding one in the suc- 
cession." The same principles were illustrated in detail by 
Mr. Justice Nanabhai Haridas. He said (Z) : " Take, for 
instance, the following case. A, the original owner of the 
property in dispute, dies, leaving a son B and a grandson 
C, both members of an undivided family. B dies, leaving 
C and D, son and grandson respectively ; and C dies, 
leaving a son D and two grandsons by him, E and F. No 
partition of the family property has taken place, and D, E 
and F are living in a state of union. Can E and F compel 

A 

A 



E 



(Ji;) Beeper Jagannatha, S Dig., 446—460. {1)10 Bom. H. C, 468. 



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PABA. 272.] MEMBEBS OF THE COPABGENABY. 339 

D to make over to them their share of the ancestral pro- 
perty? According to the law prevailing on this side of India 
they can, sons being equally interested with their father in 
ancestral property (m). In the same way, suppose B and 
C die, leaving A and D members of an undivided family, 
and then A dies, whereupon the whole of this property 

A 



Di D 

E F 

I 
G 

devolves upon D, who thereafter has two sons, E and F. 
They, or either of them, can likewise sue their father D for 
partition of the said property, it being ancestral. Now 
suppose B and C die, leaving A, D and 'D\ members of 
an xmdivided family, after which A dies, whereupon the 
whole of his property devolv<3S upon D and D* jointly, and 
that D thereafter has two sons, E and F, leaving whom 
D dies. A suit against D^ for partition of the joint ances- 
tral property of the family would be perfectly open to E 
and F, or even to G and F, if E died before the suit. It 
would be a suit against D* by a deceased brother's sons or 
son and grandson (n). But E and F are both fifth, and 
G sixth in descent from the original owner of the property, 
whereas D and D^ are only fourth. Suppose, however, 
that A dies after D leaving a great-grandson, D^ and the 
two sons of D, E and F. In this case E and F could not 
sue D^ for partition of property descending from A, because 
it is inherited by D^ alone, since E and F being sons 
of a great-grandson, are excluded by D\ A's surviving 
great-grandson, the right of representation extending no 
further (o). The rule, then, which I deduce from the Bute 

~(m) IStra. H. L., 177; 2 ibid., 816; Mitakshara,!.,!, H 27; i., 6, § 8,6,8, 11; 
V. May., iv., 6, § 18. 

(n) V. May., ir., 4, § 21. 

(o) S«e Jagannatha'g Comment, ou text, ccclxx. ; 8 Dig., 888; 1 Nort. L. G., 

1; Stra. Man., § 828; 2 Stra. H. L., 827. 



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840 THE JOINT FAMILY. [CHAP. VIII, 

authorities on this subject is, not that a partition cannot 
be demanded by one more than four degrees removed from 
I the acquirer or anginal owner of the property sought to be 
divided, but that it cannot be demanded by one more than 
four degrees removed from the last owner, however remote 
' he may be from the original owner thereof, 
i^ypiied to im- § 273. This principle was also affirmed by the Madras 
jMTto e mm- gigjj Court, and its application put to a more violent test. 
The question was as to the right of succession to an im- 
partible Zemindary. The original owner and common 
ancestor of the claimant was A. The Zemindary had 
descended throughout in the line of H, and was last 
held by N, who died without issue, leaving a widow, the 






H 

I 
J 

I 
K 

I 
L 



P M 



k 



plaintiff. N » defendant, 

widow. 



defendant. The plaintiff was G, who was admittedly the 
nearest male of kin to N. The family was undivided. It 
was conceded that, according to the law of the Mitakshara, 
an undivided coparcener would take before the widow. 
But it was contended on her behalf, '' that only those of 
the unseparated kinsmen were co-heirs, who by birth had 
acquired a proprietary interest in the estate in common 
with the deceased ; his coparceners, who, on a division in 
his lifetime, would have been sharers of the estate, and 
that such a copai^cenership can exist only between kindred 
who are near sapindas (i.e., not beyond the fburth degree), 
and consequently, thM the respondetit (pliaintiff) was not 
a co-heir of the deceased." The Court assented to the 
first branch of the argument, but denied the second. They 
held that the Zemindary, though impartible, was still 



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PABAS. 273 & 274.] MBMBEBS OF THB OOPABOBNABT. 341 

coparcenary property, and that the members of the un- 
divided family acquired the same right to it by birth, as 
they would have done to any other property, subject only 
to the limitation of the enjoyment to one. Then as to who 
were coparceners, they said : " It appears to us equally Definition of 
certain that the limit of the co-heirs must be held to <^*«»*'*«"- 
include undivided collateral relations, who are descendants 
in the male line of one who was a coparcener with an 
ancestor of the last possessor. For, in the undivided 
coparcenary interest which vested in such coparcener, 
his near sapindas were co-heirs, and when on his death, 
the interest vested in his sons, or son, or other near 
sapinda in the male line, the near sapindas of such de- 
scendants or descendant became in Uke manner co-heirs 
with them or him, and so on, the co-heirship became 
extended through the new sapindas down to the last 
descendant. Obviously, therefore, as long as the status 
of non-division continues, the members of the family who 
have, in this way, succeeded to a coparcenary interest, are 
co-heirs with their kindred who possess the other undivided 
interests of the entire estate, and one of such kindred and 
his near sapindas in the male line cannot be the only 
co-heirs, until by the death of all the others without de- 
scendants in the male line to the third degree, he has, or he 
and they have, by survivorship acquired the entire right 
to the heritage, as effectually as if the estate had passed 
upon an actual partition with the co-heirs.'* The court, 
therefore, held that the plaintiff, as undivided coparcener, 
would succeed before the widow (p). In this case it will 
be observed the plaintiff was sixth in descent irom the 
common ancestor, the defendant's husband being equally 
distant. 

§ 274. The same principle, viz., that property vests in Obetruoted and 
certain relations by birth, and not in other relations, gives ^opS?.°**^ 
rise to a division of property into two classes, which are 

(p) Yenumula v. Bamandora, 6 Mad. H. C, 94, 106. See also in Bengal, 
Girumrdharee r. KulahvX^ 4 S. D., 9 (12), where property was divided among 
persons four, five, and six degrees removed from the common ancestor. 



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843 THB JOINT FAMILY. [CHAP. VIII, 

spoken of by Hindu lawyers as Apratibandha and Saprati- 
bandha ; terms which have been translated, not very hap- 
pily, unob$trti>cted and obstructed, or liable to obstruction. 
These terms are thus explained in the Mitakshara (g), " The 
wealth of the father or of the paternal grandfather becomes 
the property of his sons or of his grandsons, in right of their 
being his sons or his grandsons ; and that is an inheritance 
not liable to obstruction. But property devolves on parents 
or uncles, brothers, or the rest, upon the demise of the 
owner, if there be no male issue; and thus the actual 
• existence of a son, and the survival of the owner are impedi- 
ments to the succession ; and on their ceasing, the property 
devolves on the successor in right of his being uncle or 
brother. This is an inheritance subject to obstruction." 
The distinction is the same as that which is present to the 
mind of an English lawyer, when he speaks of estates as 
being vested or contingent, or of an heir as being the heir-at- 
law, or the heir presumptive. The unobstructed, or rather 
the unobstructible, estate is that in which the future heir 
has already an interest by the mere fact of his existence. 
If he lives long enough he must necessarily succeed to the 
inheritance, unless his rights are defeated by alienation or 
devise ; and if he dies, his rights will pass on to his son, 
unless he is himself in the last rank of sapindas, in which 
case his son is out of the line of unobstructed heirs. On 
the other hand, the person who is next in apparent succes- 
sion to an obstructed, or rather an obstructible estate, may 
at any moment find himself cut out by the interposition of 
a prior heir, as for instance a son, widow or the like. His 
rights vnll accrue for the first time at the death of the actual 
holder, and will be judged of according to the existing 
state of the family at that time. Any nearer heir who may 
then be in existence will completely exclude him ; and if 
he should die before the succession opens, even though he 

(q) Mitakshara, i., 1, $ 3; Viramit., p. 3, V. May., ir., 2, § 2. See per curiam^ 
NutuL OoomarLcUl v. BuMMtooddeen, 10 B. L. B., 191 ; S. C^ 16 Sath., 477; 
Debt Parshad v. ThaJcur Dial^ 1 All., 112. These terms are not used by the 
writers of the Benfiral or Mithila School. V. N. Mandlik, 369 ; Jolly, I^ect. 176. 



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PABA. 276.] COPARCENARY PROPERTY. 848 

would have succeeded, had he survived, his heirs will not 
take at all, unless they happen themselves to be the next 
heirs to the deceased. In other words, he cannot transmit 
to others rights which had not arisen in himself (r). Nor 
can he by any contract bar the rights of those who, after 
his death, are the actual reversioners when the succession 
opens (s). On the same principles, rights which have 
once vested in such an heir will not be affected by the 
subsequent birth of a person Who would have taken along 
with him, or in preference to him, if in existence when 
the succession opened {t), 

§ 275. The second question is as to the coparcenary Ancestral pio- 
property. The first species of coparcenary property is ^ ^ 
that which is known as ancestral property. The mean- 
ing of this phrase might be taken to be, property which 
descended upon another from an ancestor, however remote, 
or of whatever sex. Where property so descended upon 
several persons simultaneously, and with equal rights both 
of possession and enjoyment, as for instance upon several 
brothers, sons, grandsons, nephews or the like, it would 
generally be joint property, by the very hypothesis. But 
this is not what is known for this purpose as ancestral 
property. That term, in its technical sense, is applied to 
property which descends upon one person in such a 
manner that his issue acquire certain rights in it as against 
him (u). For instance, if a father under Mitakshara law 
is attempting to dispose of property, we enquire whether 
it is ancestral property. The answer to this question is 
that property is ancestral property if it has been inherited 
as unobstructed property, that it is not ancestral if it has is imobstnioted 
been inherited as obstructed property (§ 274). The reason P'^p®^* 

«r) Bapu Anaji v. Ratvqji, 21 Bom., 319. 

(«) Bahadur Singh v. Mohar Singh. 29 I A., 1 ; S. C, 24 All., 94. 

(t) Narasimha v. Veerabadhra, 17 Mud., 287. 

(u) Property devised by a man to hia widow and his son does not become joint 
property, with its attributes of survivorship and mutual restraint on alienation. 
Jomwar Narain v. Bamchund Dutt, 23 I. A. , 37 ; S. C. 28 Cal., 670, over- 
ruling Vydinada v. Nagammal, 1 1 Mad., 258. Nor property settled on hnsband 
and wife married under Alya Santaua law, the interest of which was payable to 
both jointly. Kanthu v. Vittamma, 26 Mad., 886. See po8t § 668A. 



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344 THB JOINT FAMILY. [cHAP. VHI, 

of this distinction is that, in the former case, the heir had 
an actual vested interest in the property, before the 
inheritance fell in, and therefore his own issue acquired 
by birth an interest in that interest. Hence, when the 
property actually devolved upon him, he took it subject to 
the interest they had already acquired. But in the latter 
case, he had no interest whatever in the property, before 
the descent took place ; therefore, when that event occur- 
red, he received the property free of all claims upon it by 
his issue, and a fortiori, by any other person. Hence all 
property which a man inherits from a direct male ancestor, 
not exceeding three degrees higher than himself, is 
ancestral property, and is at once held by himself in 
coparcenary with his own issue. But where he has 
inherited from a collateral relation, as for instance from a 
Anoestndpro- brother, nephew, cousin or uncle, it is not ancestral 
^®^' property (v) ; consequently his own descendants are not 

coparceners in it with him. They cannot restrain him in 
dealing with it, nor compel him to give them a share of 
it (w). On the same principle property, which a man 
inherits from a female, or through a female, as for instance 
a daughter's son, or which he has taken from an ancestor 
more remote than three degrees, or which he has taken as 
heir to a priest or a fellow-student, would not be ancestral 
property (x). And that which is ancestral, and therefore 

(v) It is hardly necessary to remark that I am speaking of inheritance, not of 
sarvivorsbip. The enlarged share which accrues lo the remaining brothers on 
the de tth of nn undivided brother is ancestral property, and subject to all its 
incidents. Ounqoo Mull v. Bunseedhwr, 1 N.-W. P., 170. 

{w) Bayadur NaXlatambi Y . Mukunda.S Mad. H. C.,465; Nund Coomar 
Lall V. Bugziooddeeuy 10 B. L. R., 183 ; S. C, lb Suth., 477 ; Jawahirv. Ouyan, 
8 Agra H. C, 78; Lochun v. Neiiidharee^QO Suth., 170; Pitam v. Ujagar, 
1 All, 662; Jolly, Lect. 121. 

(x) 8 Dig., 61 ; W. & B., 710, approved per cur., lOB. L. R., 192, supra. The 
High Court ol Madras has held that property which descended to a man from 
his maternal grandfather was ancestral property, which he could not alienate to 
the detriment of his son. None of the above authorities wen* referred to. The 
decision was reversed by the Privy Council on another point (MuthaycM Chetii v. 
Sangili, 8 Mad.. 370. 9 I. A., 128 ; Sivagun^a v. Lakshmava, 9 Mad., 18b, 190). 
When the case arises again it will be material to remember that property only 
becomes joint property by reason of being ancestral property, where the ances- 
tor from whom it was derived was a paternal ancestor. See Mit., i., 1, § 8, 5, 
21, 24, 27, 33; i., 5, § 2, 3, 5. 9—11 ; per MUter, J., Qunga Prasad v. AjudXia 
Pershad, 8 Cal., 181, p. 184; per curiam, Jasoda Koer\. Sheo Pershad, 17 
Cal., p. 38; Nanabhai v. Achrathai, 12 Bom., p. 183; Karuppai v. Sankara 
Narayanan, 27 Mad., p. 810; post § 276. 



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PABA. 275.] COPARCBNABY PROPBRTT. 346 

coparcenary property, as regards a man's own issue, is not 
so as regards his collaterals. For they have no interest in 
it by birth (y). On the other hand, property is not the 
less ancestral because it was the separate or self -acquired 
property of the ancestor from whom it came (z). When 
it has once made a descent, its origin is immaterial as 
regards those persons to whom it has descended. It is 
very material, however, as regards those who have not 
taken it by descent. A father with two sons, A and B, 
had self -acquired property. A died in his lifetime leaving 
a widow, and upon his death B took the property. A*8 
widow calimed maintenance out of it as ancestral property. 
The Court admitted that, in any question between B and 
his sons, it would be ancestral property. But it was not 
so as regards A. During his life the property was 
absolutely at the disposal of the father. As regards A it 
was neither ancestral nor coparcenary property, and on 
his death his widow had no higher claim over it than her 
husband. Her rights were not enlarged by its change of 
character when it reached the hands of B (a) . All savings 
made out of ancestral property, and all purchases or 
profits made from the income or sale of ancestral property, 
would follow the character of the fund from which they 
proceeded (6). On the same principle accretions to a 



iy) Ajoodkia v. Kcuhee Gir, 4 N.-W. P., 31 ; Oopal Stvgh v. Bheekunlal, 
S. D. of 1859, 294 ; Qoval DuH v. Gopal Lall, ibid., 1314. 

yz) liam Narain v. PeHum Singh, 20 Sath., 189 ; S. C, 1 1 B. L. R., 397, per 
curiam, 9 Bom., 450. 

(a» Janki v. Nandram, U All. P. B., 194, p 198. 

{h) Shudanuiid v. Bonomalee, 6 Sath., 2o6; S. C. on review ; sub nominef 
Sudanand v. Soorjo Muiiee, 8 Suth., 465 ; S. C, 1 1 Suth., 436, reversed on another 
point in Privy Council ; 8iib nomine, Roorjomoneey. Suddanund, 12 B. L. R., 304; 
8. C, 20 Suth., 377 ; S.C, 8 Mad. Jar , 466 ; Gkansham v. Govind, 5 S.D., 202 
(240) ; Umirthnath v. Goureenath, 13 M. 1. A, 542 ; S. C, 5 Suth. (P. C), 10; 
Kristnappa v. Bamasaumty^Q Mad. H. C, 25 ; Jvgmohundasv. MungaUaa, 10 
Bom., 52i). In the case of GuTiga ProHod v. Ajudhia Perthad, the High Court of 
Bengal treated it as a point still unsettled, whether property purchased out of 
the income of ancestral property before the birth of a son was ancestral property 
vested in the after-born son. Mr. JuMtice 'fitter was strongly of opinion that it 
was not. It was admitted that it would be otherwise as to property so purchased 
after his birth, 8 Cal., 131 ; S. C, 9 C. L. R., 417. In Madras it has been held 
that property purchased from the income of ancestral is ancestral property, which 
cannot be given to a stranger in derogation of the right of a son who was im 
gremio mains at the time of the gift. The Court renised to follow the dictum 
of Mitter, J., cited above Bamanna v. Venkata, 11 Mad., 246. As to savings 
from income of impartible Zemindary, or purchases made out of saoh savings* 



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846 THE JOINT FAMILY. [CHAP. VIU, 

riparian village are ancestral property, if the village itself 
was such (c). Property which has been conferred on 
* a widow for her maintenance retains its character as 
ancestral when it reverts to the family on her death (d). 
Similarly where a member of a joint family has assigned 
his undivided interest to a creditor to satisfy claims which 
do not exhaust the entire value of the interest, any 
residue continues to be ancestral property (e). 

Dmded pro- § 276. Where ancestral property has been divided be- 

tween several joint owners, there can be no doubt that if 
any of them have issue living at the time of the partition, 
the share which falls to him will continue to be ancestral 
property in his hands, as regard^ his issue, for their rights 
•had already attached upon it, and the partition only cuts 
off the claims of the dividing members. The father and 
his issue still remain joint (/). But it is not so clearly 
settled whether the same rule would apply where the par- 
tition had been made before the birth of issue. In a case 
in Calcutta it was held that where a father by various 
deeds of gift had distributed his property among his sons, 



perty. 



Ancestor by 2't ^^^ portion obtained by each was ancestral property as 
regards his issue. It does not appear whether the issue 
had been in existence at the time of the gift. But the son 
contended that it was by the gift his self -acquired property. 
This the Court refused to admit. After a full examination 
of the Hindu authorities, they said : " We think that, ac- 
cording to the Mitakshara, landed property acquired by a 
grandfather and distributed by him amongst his sons, does 
not by such gift become the self-acquired property of the 
sons so as to enable them to dispose of it by gift or sale 



• see post § 286. Semhle, that movable property which haH made a descent, and 
is then converted into land, possesseH all the incidents of ancestral immovable 
property. Shavi Narain w Itaghonhur^ 3 Cal., 508. 

ic) Rampraaad v. Badha Prasad, 7 All., 402. 

(d) Beni Persha v. Puran Chvnd. 23 Cal., 262. 

\e) Krishna^arni v. Rajahgopala, 18 Mad., 73, p. 83. 

(/) Lakahmibaiw Oanpat Moroba, 5 Bom. H. C. (O. C. J.), 129 ; Chatterbhooj 
V. Dharatnsif 9 Bom., 488. The sam<^ point was very lately decided in Calcatta. 
The report does not state whether the son was born before or after the partition, 
but I think the latter seems to have been the case. Adurmoni Cnowdhry, 
8 Cal., 1. 



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PARA. 276.] COPARCENARY PROPERTY. 34T 

without the consent, and to the prejudice of, the grandsons. 
The property cannot be said to have been acquired without 
detriment to the father's (t.6., ancestral) estate, because it 
was not only given out of that estate, but in substitution 
for the undivided share of that estate to which the father 
appears to have been entitled. It cannot therefore be 
taken to have been given simply by the favour of the 
father, but upon consideration of the father surrendering 
some interest or right to share in the grandfather's estate, 
which he did by the acceptance of this separate parcel. 
We think that the father took it with the incidents to 
which the undivided share for which it was substituted 
would have been subject'* (g). This reasoning would 
appear to apply equally in favour of issue unborn at the 
time of the gift. Similarly it was held in Madras, that a 
father did not take his share of the estate as self-acquired or by wUi 
property, in consequence of having received it under the 
will of his own father. The Court said : "It seems to us 
that there is no reason whatever in the contention that its 
quality was changed by his choosing to accept it, apparent- 
ly under the terms of his father's will. Still less ground 
would there be for the contention that his acquiescence 
in that mode of receiving it would vest in himself a larger 
interest than he would have taken by descent " (h). The 
same principle was followed in a case under Mitakshara 
law, where a father bequeathed his self-acquired property 
to his widow and his three sons jointly. Two of the sons 
separated. The third continued to live in union with his 
mother, and on her death took her share by survivorship. 
The Court, after reviewing the above decisions, held that 
the share of the widow which came to the son must be 

(g) Muddun Oopal v. Bam Bukah, 6 Suth., 71, 73; followed Navomi Babua- 
sin V. Modun Mohun, 13 I. A., 5. In Mohabeer Kooerv. Joobha^ 16 Suth., 221; 
8. C, 8 B. L. R., 88; a contrary opinion seems to have been expressed by 
Jackaon^ J. Bat in that case the property appears not to have been ancestral at 
all. See as to what is " a gift through affection,*' Lakahman v. Bamachandra, 
1 Bom., 661. 

(h) Tata Ohand v. Beeb Bam, 3 Mad. H. C, 60, 55 ; Nagafingam v. Bama- 
chandra Tevar, 24 Mad., 429. In this case an alienation by the devisee was held 
bad at against an after- bom son. 



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848 THE JOINT FAMILY. [cHAP. VIII, 

considered in his hands as ancestral property, since it had 
originally formed part of his father's estate (i). What- 
ever the nature of the widow's interest may have been, its 
descent was governed by the incidents attaching to the 
source from which it arose. Where a man had obtained a 
share of family property on partition, which was mort- 
gaged to its full value, and which he had subsequently 
cleared from the mortgage by his own self -acquisitions, it 
was held that the unencumbered property was ancestral 
property in his hands (k). 

In Bombay it has been recently decided, after a review 
of all the cases, that where a grandfather bequeaths his 
self-acquired property to a son, who has at the time male 
issue, in terms showing an intention that the devisee 
should take an absolute estate, the property so devised 
does not vest in the issue as ancestral estate, so as to 
entitle them to sue their father for a partition (I). 

Proper^ jointly § 277. Secondly, property may be joint property with- 
**^ out having been ancestral. Where the members of a Joint 

Family acquire property by or with the assistance of joint 
funds, or by their joint labour, such property is the joint 
property of the persons who have acquired it, whether it 
is an increment to ancestral property, or whether it has 
arisen without any nucleus of descended property (m). 
And it makes no difference that the form of the conveyance 
to them would make them tenants in common and not joint 
tenants (n). Whether the issue of such joint acquirers 

(i) Nanabhai v. Achratbaiy 12 Bom., 122, p. 133 ; Beni Perskad v. Puran 
C/r««<i, 28Cal.,262. 

{k) Visalatchy v. Annaaamy, 5 Mad. H. ('., 150 ; KrUhnaaami v. Bajahgopala, 
18 Mad., 73, p. 88. 

(/■) Jugmonundas v. Mangaldas, 10 Bom., 528 ; ace. Nagalingam v. Rama- 
chendra Tevar, 24 Mad., 429. 

(m) Manu, ix., {5 215; Yajnavalkya, ii., 120; Mitakshara, i.,4, S 16 ; 3 Dig., 
386; P. MacN., 351, 362; liamaaheahaiya v. Bhagavat, 4 Mad. H. C , 6; 
Bamperahad v. Sheochum, 10 M. I. A., 490 ; Badhabai T. Nanarav, 3 Bom., 
151. In Benj^al no sach presumption would arise. Saradav. Mahavavda, 31 Cal., 
448. By § 45 of the Transfer of Property Act (IV of 1882) persons who purchase 
immo7able property out of a common fund are, in the absence of any contreict to 
the contrary, entitled to hold it in shares proportioned to their interest in the 
oommon funds ; and similarly where a joint purchase is made by several with 
their separate funds. 

(n) PokermulVa goods, 23 Cal., 980. 



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PARAS. 277 & 278.] COPARCENARY PROPERTY. 34ft 

would by birth alone acquire an interest in such property, 
without evidence that they had in any way contributed to 
it, is a question which, as far as I know, has never arisen. 
Tf a single individual acquired a fortune by his own 
exertions, without any assistance from ancestral property, 
his issue would certainly take no interest in it. If several 
brothers did the same, the property would be Joint as 
between themselves. It would certainly be self-acquired 
as regards all collaterals, and it is difficult to see why it 
should not be the same as regards their issue, unless they 
chose voluntarily to admit the latter to a share of it. This 
seems to have been the view taken by the High Court of 
Bombay in a case where property had been acquired by 
trade. They said . " There is no evidence to show that the 
parties were members of an ordinary trade partnership 
resting on contract. If the sons had a joint interest with 
their father in the piece-goods business, it was apparently 
because they were members of an undivided family 
carrying on business jointly in that capacity. If the 
property of the family firm had been acquired by the equal 
exertions of the three members, without the aid of any 
nucleus of property other than acquired by themselves, 
then, no doubt, the property of the firm with its accuinu- 
lations would be self-acquired property even though 
it was owned jointly. And on a partition such property 
would apparently remain self-acquired property in the 
hands of the several members, even though one of them 
was the father of the other two '* (o). In a later Madras 
case Bhdshyem Iyengar, J., seemed to think that the issue 
would acquire an interest by birth if the acquirers intended 
to hold the property as joint family property, but not if 
they only intended to hold it as co-owners inter se, 
Stidarsanam v. Narasimhtdu, 25 Mad., p. 155. 

§ 278. Thirdly, property which was originally self-ac- o' thiowii into 
quired, may become joint property, if it has been volun- 
tarily thrown by the owner into the joint stock, with the 

(o) Chatterbhoof ▼. Dharamn, 9 Bom., 488, p. 446. 



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550 THE JOINT FAMILY. [cHAP. VIII, 

intention of abandoning all separate claims upon it. This 
doctrine has been repeatedly recognized by the Privy 
Council. Perhaps the strongest case was one, where the 
owner had actually obtained a statutory title to the pro- 
perty under the Oudh Talukdars Act I of 1869. He was 
held by his conduct to have restored it to the condition 
of ancestral property (p). To create such a new title, 
however, a clear intention to waive the separate rights of 
the owner must be established, and will not be inferred 
from acts which may have been done out of kindness and 
affection. A younger brother who was insane from birth 
had for many years been treated by his elder brother as if 
he was under no incapacity. His name was entered in 
the revenue records as joint owner, and documents were 
issued and takeh in his name. It appeared that for many 
years his case had been treated by the family as one that 
might be cured. Finally a family arrangement was entered 
into by which he was set aside as incapacitated. The 
Privy Council held that the previous course of conduct 
could not be treated as amoxmting to a fresh grant of 
rights which the youth was incapable of taking by 
inheritance (q), 
impartiUe pro- § 279. Liability to partition is one of the commonest 
pnf. ^ incidents of joint property, but it must not be supposed that 
'•^^^ joint property and partible property are mutually con- 

vertible terms. If it were so, an impartible Zemindary 
could never be joint property. The reverse, however, is 
the case. The mode of its enjoyment necessarily cuts 

(p) Hurpurahadv. Sheo Dyal, 31. A., 259; S. C, aGSuth., 55; Shankar 
Baksh V. Hardeo BaJcah, 16 1. A., 71 ; S. C, 16 Cal., 897 ; (as to cases in which 
sach a Taluqdar was held to have taken the Statutory estate on trust for the 
other members of the family, see Mt. Thukrain Sookraj v. Government^ 14 
M. I. A., 112 ; Thakoor Hardeo Bux v. Jowahir Singh,, 4 1. A., 178 ; 6 I. A., 161 ; 
Thakuram Bamanund v. BojfhunathKo&r, 9 1. A., 41 ; S. C, 8 Cal., 769 ; Hasan 
Jafar v. Muhammad Askart, 26 I. A., 229) ; per cur., Bamperahad Sheochum, 
10 M. I. A., 506 ; CheUayanuU v. ^fuHalamal, 6 Mad., Jur. P. C, 106 ; Sliam 
Narain v. Court of Wardi, 20 Sutb . , 197 ; per curiam, 1 5 Bom. , p . 89 ; 10 Cs 1. , pp. 
892, 898, 401 ; Madhavarav Manohar ▼. Atmaram, 15 Bom., 519 ; TribovandaM 
y. Yorke Smith, 21 Bom., 849 ; reversing ; S. C, 20 Bom., 316, the same rule was 
applied to property which, though not self-acauired, had descended from a 
maternal ancestor to daughter's sons. They would not be coparceners, but had 
elected to treat it as joint property, Oopalaaami v. OfUnnasamif 7 Mad., 458. 

{q) Lola Muddun Gopal ▼. Khikhinda Koer, 18 1. A., 9 ; S. C, 18 Cal.,841. 



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PABA8. 279 & 280.] COPARCBNARY PROPERTY. 861 

down to a very small point the rights of the other members 
of the family with respect to it. But there are two parti- 
culars in which its joint character becomes material — first, 
with reference to the order of succession ; and, secondly, 
as to the powers of alienation possessed by each successive 
holder. Now, as to the first point, it has been repeatedly 
held by the Privy Council that the order of succession to 
a Zemindary depended upon whether " though impartible 
it was part of the common family property, '* or was the 
separate or self -acquired property of the holder (r). As 
to the second point, the Courts of Madras, Calcutta and 
Allahabad till very lately ruled that the holder of an 
impartible Zemindary under Mitakshara law would be 
under the same restrictions as to alienation in regard to 
it as to any other ancestral property. This course of 
decisions has, however, been interrupted in consequence 
of a recent ruling of the Privy Council. The subject will 
have to be discussed more fully hereafter (s). 

§ 280. An examination into the property of the joint CoparoeneM 
family would not be complete without pointing out what ^ysepftn^y. 
property may be held by the individual members which is 
not joint property. Property which is not joint must be 
either separate property or self-acquired, or property 
which has devolved upon another in such a manner as to 
be held by him free of all claims by members of the same 
undivided family. The last of the three cases has already 
been discussed (§ 275, 276). Separate property, ex vi 
termini assumes that the holder of it has ceased to be in 
union with those in reference to whom the property is 
separate. But a man is very commonly separated from 

(r) Katama Natchierv. Rajah ofShivagunga, 9 M. I. A., 689, 589, 610; S. C. 
aSath. (P. t^),31; Tanumw^ ▼• BoocWa, 13 M. I. A., 383, 336; 8. C, 18 Suth. 
(P. C), 21; Chowdhry ChirUamun v. Nowlukho, 2 I. A., 268; S. C, 24 Sath., 
255; Tenumalav. Bamajtdora^ 6 Mad. H. C, 98. 103; Periaaamy v. Periasamy, 
51. A., 61 ; S C, 1 Mad., 812; Bunganayakamma v. BulU Bamaya, P. C, 5th 



July, 1879; Jogendra Bhupati v. Nityanand, 17 I. A.. 128; 3 C, 18 Cal., 151; 
Kali KrUhna v. Baghunath, 81 Cal., 224. It has been saggested by the 
Calcutta High Coart that Qhatwali tenores created by Beg. aXIX of 1814, 



though hereditary are the exolusive property of each successive owner. 
Ohatradhari Singh v. Kunj Behari, 22 Cal., 156. 
(f) See post ^S^S. 



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362 THE JOINT FAMILY. [cHAP. VIII, 

one set of persons, as, for instance, his brothers, while he 
is in union with others, as for instance, his own issue. 
As regards the former, his property is separate ; as regards 
the latter, it is joint (§ 276). Self-acquisition, on the 
other hand, may be made by anyone while still in a state 
of union, and when made will be effective against the 
whole world. I have already (§ 239 — 241) pointed out 
the early history of this branch of the law. The following 
remarks will show how it has been dealt with by modern 
decisions : 
BeU-aoqnirition. § 281. The whole doctrine of self-acquisition is briefly 
stated by Yajnavalkya as follows : — " Whatever is acquired 
by the coparcener himself, without detriment to the 
father's estate, as a present from a friend, or a gift at 
nuptials, does not appertain to the coheirs {t). Nor shall 
he who recovers hereditary property which has been taken 
away give it up to the coparceners ; nor what has been 
gained by science *' (w). Upon this the Smriti Chandrika 
remarks that the estate of the father means the estate of 
any undivided coheir (t?). While the Mitakshara adds 
that the words *' without detriment to the father's estate " 
must be connected with each member of the sentence. 
"Consequently what is obtained from a friend as the 
return of an obligation conferred at the charge of the 
patrimony ; what is received at a marriage concluded in 
the form Asura or the like (w) ; what is recovered of the 
hereditary estate by the expenditure of the father's goods ; 
what is earned by science acquired at the expense of 
ancestral wealth ; all that must be shared with the whole 
of the brethren and the father" (x). The author of the 
Mitakshara enlarges the text of Yajnavalkya by defining 
self-acquisition as " that which had been acquired by the 

( t ) See as to presents from relations or friends, Mann, iz., $ 206.; Narada, ziii., 
$ 6, 7; Muddun Gapal y. Ram Buk$h, 6Sath., 71 ; ante § 276; Mitakshara, 
i.i o, IS 9. 

(m ) Yajnavalkya, ii., § 118, 119 ; MiUkshara, i., 4, § 1. See Daya Bhaga, vi,, 1 ; 
D. K. 8., iv., 2, $ 1—12; V. May., iv., 7, § 1—14; Bagunandana, v.. 1—12. 
' ' Smriti Chandrika, vii., $ 28. 

Sheo Oohind v. Sham Narain^ 7 N.-W. P., 75. 
Mitakshars, i, 4, $ 6. 



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PARAS. 281 & 282.] SELF-ACQUISITION. 358 

coparcener himself without any detriment to the goods of 
his father or mother ^ Hence the Madras High Court 
has recently decided that property inherited by a man 
from his mother's father is not his self -acquisition, and 
this ruling has been affirmed by the Privy Council {y). 
The whole contest in each instance is to show that the 
gain has been without " detriment to the estate.** In early 
times the slightest assistance from the joint patrimony, 
however indirect, was considered to be such a detriment, 
and the possession of any joint property was considered as 
conclusively proving that there had been such an assist- 
ance. The Madras Court has always leant very strongly 
against self-acquisition. But the recent tendency of deci- 
sions seems to be towards a more sensible view of the law, 
following out its spirit rather than its letter. 

§282. For instance, the gains of science or valour, Ghuns of 
which seem to have been the earliest forms of self -acquisi- 
tion, were held to be joint property, if the learning had 
been imparted at the expense of the Joint Family, or if 
the warrior had used his father's sword (§ 240). The law 
upon this point was examined with great fulness in a case 
where the adoptive mother of a dancing girl claimed her 
property, on the ground that it had been acquired by skiU 
imparted at the mother's expense. The High Court of 
Madras, over-ruling a very elaborate judgment of the Civil 
Judge, decided that if these gains were to be considered 
the gains of science, they were joint property of the acquirer 
and her mother {z). It would admittedly have been other- 
wise if her gains had merely been the result of prostitution, 
unaided by any special education (a). In a later case the 
gains of a Vakil were held to be divisible, on the ground 
that they had been obtained by education imparted at the 
family expense, althou^ it was found that he had received 

(v) Mit., i., 4, § 2 ; acc. Baghunandana, v., 5 ; Mutiayan Chetty v. Sangili, 9 
I. A., 127 ; 3 Mad., 870, IB82. The Privy Council declined to commit itself to 
the consequence drawn by tlie Madras Flieh Court that property so inherited 
became the joint property of the taker and his son. See ante % 276, note. 

U) OhalakoHda v, Batnachalanij 2 Mad. H. C, 56. See 2 W. MacN., 167. 

(a) Boc^am t Sivomamf 4 Mad., 880. 

23 



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3W THB JOINT FAMILY. [CHAP. VIII, 

from his father nothing more than a general education. 
HoUoway, J., referring to the dancing girl's case, said : 
** I fully adhere to the judgment of the Hight Court, for 
which I am responsible, and especially to the statement 
that the ordinary gains of science by one who has received 
a family maintenance are certainly partible" (6). The 
decisions in the above cases were adopted in general terms 
by the Chief Justice in Bombay in another case of a 
Vakil. There, however, the point really did not arise, as 
it appeared that he united the business of money-lender 
with that of Vakil, and that there was joint family pro- 
perty of which he had the use (c). 
Bfleot of eduoa- § 283. It is, however, difficult to see why a person who 
on in y. j^^^ made gains by science, after having been educated or 
maintained at the family expense, should be in a worse 
position than any other person who has been so educated 
or maintained, and who has afterwards made self-acqui- 
sitions. Jimuta Vahana lays it down, that where it is 
attempted to reduce a separate acquisition into common 
property on the ground that it was obtained with the aid 
of common property, it must be shown that the joint stock 
was used for the express purpose of gain. **' It becomes 
not common merely because property may have been 
used for food or other necessaries, since that is similar 
to the sucking of the mother's breast " (d). This seems 
to be good sense. If a member of a Hindu family were 
sent to England at the joint expense, to be educated for 
the Bar or the Civil Service, it seems fair enough that his 
extra gains should fall into the common stock, as a recom- 
pense for the extra outlay incurred. It might be assumed 
that when the outlay was incurred the reimbursement 
was contemplated. But it is different where all start on 
exactly the same level, with nothing but the ordinary 
maintenance and education which is common to persons 
of that class of life. Accordingly in a Madras case, where 

Oungadhartidu t. Naratammahf 7 Mad. H. C, 47. 

Bai Manchha v. Narotamdatj 6 Bom. H. C. (A. C. J.), 1, 6. 

Daya Bhaga, vi., I, § 44—60; 1 Stra. H. L., 214 ; 2 Stra. H. L., 347. 



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PABA. 283.] SELF-ACQUISITION. 365 

a Hindu had made a large mercantile fortune, his claim to 
hold it as self-acquired was allowed, though he had 
admittedly been maintained in his earlier years, educated 
and married out of patrimonial means (e). So in a Bengal 
case where self -acquisition was set up, and the defendant 
had been maintained at the family expense, but it was 
proved that in acquiring his property he did not use any 
funds which belonged to the joint family, his gains 
apparently being derived from some lucrative employment, 
it was held that the plea was made out. Mitter, J., 
said : " The plaintiff's case in the Court below was that 
the defendant received his education from the joint 
estate, and that he is consequently entitled to participate 
in every property that has been acquired by the de- 
fendant by the aid of such education. But this conten- 
tion is nowhere sanctioned by the Hindu law, and I see 
nothing in justice to recommend it " (/). This case was 
approved by the Privy Council in an appeal where it had 
been contended that the property acquired by a suc- 
cessful merchant was joint property, because he had 
been educated out of the joint funds. The fact was 
negatived, upon which the Committee observed, " This 
being their Lordships' view, it does not become necessary 
to consider whether the somewhat startling proposition 
of law put forward by the appellant, which, stated in 
plain terms, amounts to this — that if a member of a 
joint Hindu family receives any education whatever 
from the joint funds, he becomes for ever after incapable 
of acquiring by his own skill and industry any separate 
property — ^is or is not maintainable. Very strong and 
clear authority would be required to support such a 
proposition. For the reasons that they have given, it 
does not appear to them necessary to review the text- 
books or the authorities which have been cited on this 
subject. It may be enough to say that, according to their 

(e) OheUaip&rootn<tU t. Veeraperoomallt 4 Mad. Jar., 64, affd., on appeal, 
»&., 240. 
(/) Dkunoohdaree r, Ounput, 11 B. L. B., 201, note; S. C, 10 Sath., 123. 



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956 THE JOINT FAMILY. [CHAP. VIII, 

Lordships' view, no texts which have been cited go to 
the full extent of the proposition contended." Then, after 
referring with approval to the Bengal case as laying the 
law down less broadly than those in Madras and Bombay, 
the judgment concluded by saying : " It may hereafter 
possibly become necessary for this Board to consider, 
whether or not the more limited and guarded expression 
of the law upon this subject of the Courts of Bengal, is 
not more correct than what appears to be the doctrine of 
the Courts of Madras ''(g). 
The Boienoe § 284. All of the above cases were recently examined by 

^i^to^t tlie High Court of Bombay (A). They said : " It certainly 
at the family appears to US that the dictum of MitteVy J., that the propo- 
sition which we are considering * is nowhere sanctioned by 
Hindu law,' is not strictly accurate. The texts which 
have been cited to us do, in our opinion, establish it as a 
rule of Hindu law that the ordinary gains of science are 
divisible, when such science has been imparted at the 
family expense, and acquired while receiving a family 
maintenance, but that it is otherwise when the science 
has been imparted at the expense of persons who are not 
members of the student's family. But the question still 
remains, whether the term * Science,' as used in the 
texts, is, in modern days, to be construed as meaning 
a mere general education, and not rather a special 
training for a particular profession. The words * any 
education whatever' in the judgment of the Judicial 
Committee in Patdiem v. PatUiemy as well as an observa- 
tion of one of their Lordships in the course of the 
argument, that the Madras case of the dancing girl was a 
case of a special training, and not necessarily applicable to 
a case of general training, may seem to indicate that, if the 
question again comes before their Lordships, it will be 
considered chiefly with reference to the nature and extent 

(g) Pauliem Valoo v. Pauliem Sooryah, 4 I. A., 109, 117; 8. C, 1 Mad., 

(h) Lakahman v. Jumnabaif 6 Bom., 225, p. 242. Approved and followed, 
Krishnaji Mahadev ▼. Moro Mahadev. 15 Bom., 82 : Lahthman Kuar ▼. Debt 
Praiad, 20 AU., 485. 



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I^ABAS. 284 & 285.] SBLP-ACQUISITION. 357 

of the education imparted at the family expense.'* The 
Court, after citing with approval the remarks at the 
beginning of the preceding paragraph, proceed to say : 
" We think that we shall be doing no violence to the 
Hindu texts, but shall be only adapting them to the 
condition of modern society, if we hold that, when they 
speak of the gains of science which has been imparted 
at the family expense, they intend the special branch of 
science which is the immediate source of the gains, and 
not the elementary education which is the necessary 
stepping stone to the acquisition of all science." 

S 285. On the same principle, although the admitted Poaaeesion of 

. . joinl lands nol 

possession or existence of joint funds will throw upon the oonoinuTe. 
self-acquirer the onus of proving that such funds did not 
form the nucleus of his fortune (i), the fact itself is not 
conclusive. In a case in the Supreme Court of Bengal, 
Grant, J., said : " Where the property descended is 
incapable of being considered as the germ whose improve- 
ment has constituted the wealth subsequently possessed, 
this wealth must evidently be deemed acquired. An 
ancestral cottage never converted, or capable of conversion 
to an avilable amount into money, in which the maker 
of the wealth had the trifling benefit of residing with the 
rest of the family when he commenced turning his industry 
to profit, — so of other things of a trifling nature** (i). 
Of course the contrary would be held, if it appeared that 
the income of the joint property was large enough to leave 
a surplus, after discharging the necessary expenses of the 
family, out of which the acquisitions might have been 
made (Z). And purchases made with money borrowed on 
the security of the common property will belong to the 
Joint Family, the members of which will be jointly liable 

( t ) Shib Perahad v. Oungamonee, 16 Sath.,291 ; Pran Kristo v. Bhageerutee. 
90 Stith., 158 ; Subbayya ▼. Surayya, 10 Mad., 251. 

{k) OooToochum v. Ooluckmoney^ Falton, 165, 181 ; per curiam, Meenatchee 
V. Chetumbra, Mad. Deo. of 1858, 63 ; Jadoomonee v. Oungadur, 1 Boaln., 600 ; 
V. Darp., 521 ; Ahmedbhoy v. CoMumbhou, 13 Bom., 534 ; 10 M. I. A., p. 505. 

{I) SudanuTidr. Soorjo Motiee, II Sain., 436; Tottempudi Venkataratnam 
T. Sethamma, 97 Mad., p. 234. 



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368 



THE JOINT FAMILY. 



[OHAP. VIII, 



GoTernmeni 
gnmto. 



for the debt (m). But it would be otherwise if the loan 
was made on the sole credit of the borrower, or even if 
the loan was made out of the common fund, under a special 
agreement that it was to be at the sole risk of the borrower, 
and for his sole benefit (w). 

§ 286. Estates conferred by Government in the exercise 
of their sovereign power become the self-acquired property 
of the donee, whether such gifts are absolutely new grants, 
or only the restoration to one member of the family of 
property previously held by another, but confiscated (o), 
unless some contrary intention appears from the grant (p). 
But where one member of a family forcibly dispossesses 
another who is in possession of an ancestral Zemindary, 
and there is no legal forfeiture, nor any fresh grant by 
a person competent to confer a legal title, the new 
occupant takes, not by self -acquisition, but in continuation 
of the former title (q). And where a confiscation made 
by Government was subsequently annulled, and no grant 
to any third person was ever made, it was held that the 
old title revived, for the benefit of all persons capable of 
claiming under it (r). So a grant made by Government 
to the holder of an estate, which merely operates as an 
ascertainment of the State claim for revenue, and a 
release of the reversionary right of the crown, is a mere 
continuance of the old estate (s). 



(m) Sheopershad v. Kulunder, 1 S. D., 76 (101). 

(n) Bai Nursingh v. Bai Narain, 8 N.-W. P., 218. 

(o) Katama Natchiar v. Rajah of Shivaganga^ 9 M. I. A., 606 ; S. C, 2 Suth. 
(P. C.), 31; Beer Fertah v. Maharajah Bajender^ 12 M. I. A., 1 (Hunsapore 
Case) ; S. C, 2 Suth. (P. C), 81 ; Venkataraycuiu v. Venkataramaya, 15 Mad., 
284, ante § 54. Ab to grants in Oudh ivfter the Confiscation of 1858, and under 
Act I of 1869 (Oadh Estate Act), see Thakurain Sookraj v. The Oovemment, 
14 M. I. A., 112 ; Hurpurshad ▼. SIteo Dyal, 3 I. A., 259 ; 8. C, 26 Suth., 66 ; 
Hardeo Bum v. Jawahir^ 4 I. A., 178; 6 I. A., 161 ; Brijindar v. Janki Koer, 
6 I. A., 1 ; Thakur Shere v. Thakurain^ 8 Cal, 616 ; Gouri Shunker v. Maha- 
rajah o/ Bulramporet 6 I. A., 1 ; S. C, 4 Cal., 839 ; Mulka Jahan v. Deputy 
Oommtseioner of Liieknoto, t6., 63; MirMaJehan v. Nawab 4f9ur BahUy ib. 
76 ; S. C, 4 Cal., 727 ; Seth Jaidial v. Seth Siteeram, 8 I. A., 216 ; Ramanund 
V. Baghunath, 9 1. A., 41 ; S. C, 8 Cal., 769 ; Pirthi Pal v. JewaMr Singh, 14 
I. A., 87. A grant of a jaghire is presumably only for life. Oulabaas t. 
Collector of Surat, 6 I. A., 64 ; 8. C, 3>om., 186. 

(p) Mahant Qovind Boo v 8Ua/ram, 26 I. A., 196 ; 8. C, 21 AH., 63. 

(q) Yanumula Boochia, 18 M. I. A., 888 ; 8. C , 13 Suth. (P. C), 21. 

(r) MirMa Jehan v. Badehoo Bahoo, 12 I. A., 124 ; 8. C, 12 Cal., 1. 

(s) Narayana v. Chengalamma, 10 Mad., 1. 



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PARA. 286.] SELF-ACQUISITION. 859 

A point which has now been finally decided is, whether Savingi from 
the savings made by the holder of an impartible estate property.^ 
under Mitakshara law, are his self-acquired property, or 
not. It is quite settled that, although an impartible 
Zemindary may be joint property, in the sense that all the 
family have a joint and vested interest in the reversion 
(§ 279), its annual income, and the accumulations of such 
income, are the absolute and exclusive property of the 
possessor of the Zemindary for the time being. None of 
his kindred can claim an account of the mode in which he 
has spent his income, nor a share in the profits annually 
accruing or laid by. He may spend as much or as little of 
his income as he likes. If he spends it all, it is not waste, 
and whatever he invests is absolutely at his own disposal 
during his life (t). There could therefore be no coparcenary 
in such savings, and therefore no survivorship (w). If, there- 
fore, a Zemindar in Madras left no issue, it seems to me 
that his widow would take his savings before his brothers, 
or their issue, and if he left issue, they would take exclu- 
sively. This appears to have been the view of the Madras 
High Court in one of the two cases quoted above, where 
they say : ** Whether regarded as the separately acquired 
funds of the Zemindar, or as it really is, his acquisition 
derived from ancestral property owned by him solely, it is 
equally divisible family property as between his sons ** (v). 
Accordingly when a Poligar died leaving debts which 
would not bind the ff^mily, but also leaving property which 
had been purchased out of the savings of his income, it 
was held that such purchases were his separate property, 
to which his creditors would be entitled in discharge 
of their debts (w). Of course savings handed down from 
previous Zemindars would follow a different rule ; they 

{t) Maharajulungartt v. Rajah Bow Fantalu, 6 Mad. H. C, 31, 41 ; Lutch- 
mana Bow v. Terimul Bow, 4 Mad Jur., 241. 

(u) See Neelkiito Deb v. Beerchunder, 12 M. I. A., 540 ; S. C, 8 B. L. R. 
(P. C), 18 ; S. C, 12 9>xiih. (P. C), 21 (Tipperah CaBe). 

{v) 5 Mod. H. C, 41 ; supra note (t). 

{w) Kotta Bamtuaini v. Bangari, 8 Mad., 145. Both Judges agreed that this 
would be the case with a dejur^ Poligor, but tbey differed as to the law where 
the Poligar wa« one de facto bat not de jure. Sec pp. 166, 166. Parbati 
Kumari v. Jagadit Chunder, 29 I. A., 82 ; 3. C, 29 Cal., 488. 



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360 THE JOINT FAMILY. [CHAP. VIII, 

would become the joint property of his descendants, of 
whom the succeeding Zemindar was only one, his brothers 
and their issue being the others. 

BeooTerrof § 287. Another mode of self -acquisition, which is not 

JSrty. '^^ very likely to arise now, is where one coparcener unaided 
by the others or by the family funds, recovers, with the 
acquiescence of his co-heirs, ancestral property which had 
been seized by others, and which his family had been 
unable to recover (x). In order to bring a case within 
this rule, the property must have passed into the posses- 
sion of strangers, and be held by them adversely to the 
family. It is not sufficient that it should be held by a 
person claiming title to hold it as a member of the family, 
or by a stranger claiming under the family, as for instance 
by mortgage. So also the recovery by one co-heir for his 
own special benefit is only permissible where " the neglect 
of the coparceners to assert their title had been such as to 
show that they had no intention to seek to recover the 
property, or were at least indifferent as to its recovery, 
and thus tacitly assented to the recoverer using his means 
and exertions for that purpose, or upon an express 
understanding with the recoverer's coparceners.'* " The 
recovery, if not made with the privity of the co-heirs, 
must at least have been bond fide, and not in fraud of 
their title, or by anticipating them in their intention of 
recovering the lost property." Finally, it must be an 
actual recovery of possession, and not merely the obtaining 
of a decree for possession {y). 

BesalitoM- As to the result of such a recovery, there seems to be a 

*^""' conflict in the Mitakshara. At ch. i., 6, § 11, the author, 

. referring to Manu, ix., § 209, makes the property which 

\ has been recovered belong exclusively to the recoverer. At 

(aj) Manu, ix., § 309 ; Mitakshara, i., 4, § 2, 6 ; Daya Bhaga, vi., 2, § 81—37 ; 
D. K. S. iv., 2, § 6—9; Raghnnandana, v , 29—31. 

iy) Viaalatchy v. Anvaaamyt 6 Mad. H. C, 160 ; Bish^swar v. Shitul, 8 Suth., 
18 ; S. C, confirmed on review ; ivb nomine^ BUtesnur v. Seetul, 9 Sath., 69 ; 
Bolakeey. Covrt of Wardt^ 14 Suth., 34: Jugmohundat v. Mangaldas^ 10 
Bom., 528 ; Mu*tu VadhugaiMdha v Dorasinga, 8 I. A., 99 ; 8. C, 8 Mad.. 800; 
Naraganti v. Venkatachcuapati^ 4 Mad., p. 269. 



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PARAS. 287 & 288.] ACQUISITIONS BY JOINT FUNDS. 801 

ch. i., 4, § 11, he quotes a text of Sankha as establishing . 
that, '* if it be land, he takes the fourth part, and the I 
remainder is equally shared among all the brethren.** ' 
Dr. Mayr reconciles the discrepancy by supposing that the 
former text refers to the case of a recovery by the father, 
while the latter refers to one of several brethren or other 
coparceners, who all stand on the same level (z). The 
Bengal authorities, however, take the latter rule as apply- 
ing to every recoverer, but only in the case of land (a). It 
is to be observed that the recoverer takes one-fourth first, 
and then shares equally with the others in the residue (6). 

§ 288. An intermediate case between self-acquired and Aeqnisiftioiis 
joint property is the case, resting upon a text of Vasishtha, ? Jmcb. ^ ^^^ 
in which property acquired by a single coparcener, at the 
expense of the patrimony, is said to be subject to partition, 
the acquirer being entitled to a double share (c). It has 
already been suggested (§ 240) that this text probably 
applied originally to self-acquisition properly so called, 
and that it cut down the rights of a self-acquirer, instead 
of enlarging the rights of one who has made use of com- 
mon property. The Smriti Chandrika and Madhaviya 
both restrict the text to the gains of learning, when con- 
sidered to be partible in consequence of the education from 
which they sprung having been imparted at the expense 
of the family (d). The general principles laid down by 
Vijnanesvara seem to exclude the idea that any special 
and exclusive benefit can be obtained to any co-heir by a 
use of the family property (e). Mr. W. MacNaghten 
states that under Benares law no such benefit can be 
obtained, whatever may have been the personal exertions 

(«) Mayr, 25 ; Vrihaupati. 3 Dig., 32. 

(a) Daya Bhag*. vi., 2, § 36—89; D. K. S., iv., 2, § 7, 8; 1 W. MacN., 62; 
2 W. MacN.. 167. 

(6) D. K. 3., iv., 2, § 9 ; 3 Dig., 866. 

{ci *' And if one of the bi'others has gained something by his own effort, he 
skall receive a double share." Vasishtha, xvii., 61 ; Mitakshara, i., 4, § 29 ; 
Daya Bbaga, vi., 1, 5 27—29 ; Raghunandana, i., 20, v., 18. 

(d) Smriti Chandrikv, vii., i 9; Madhaviya, p. 49, and see futwah, 2 
W. MacN , 167. 

(«) Mitakshara, i., 4, § 1— fi. 



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862 THE JOINT FAMILY. [CHAP. VUI, 

of any individual, but that the rule does exist in Bengal (f) . 
There is no doubt that in that province the rule has been 
repeatedly laid down {g), but little attempt has been 
made to define its extent, or the cases to which it applies. 
In a case before the Supreme Court of Bengal, Sir haw- 
rence Peel, C. J., laid down the law as follows : " The 
authorities establish, and the uniform course of practice 
in this Court is conformable to them, that the sole manager 
of the joint stock is thereby entitled to no increased share 
and that skill and labour contributed by one joint sharer 
alone in the augmentation or improvement of the common 
stock, establishes no right to a larger share ; that the 
acquisition of a distinct property without aid of the joint 
funds or joint labour gives a separate right, and creates a 
separate estate ; that t